Opinion
Civil Action 21 Civ. 8985 (AT) (SLC)
11-22-2022
WILLIAM DANIELS, Plaintiff, v. NYC/DOC/VCBC WARDEN CARTER, NYC/DOC/VCBC HOUSING UNIT 3-AA CAPTAIN GUERRA, NYC/DOC/VCBC FACILITY STOREHOUSE CAPTAIN HORTON, NYC/DOC/VCBC INTAKE SUPERVISOR JERMAINE SLACK #1849, NYC/DOC/VCBC INTAKE CAPTAIN CARLO CIQUERO #1830, Defendants.
TO THE HONORABLE ANALISA TORRES, United States District Judge:
REPORT AND RECOMMENDATION
SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
Pro se Plaintiff William Daniels (“Daniels”), a pretrial detainee at the Vernon C. Bain Center at Rikers Island (“VCBC”), alleges that Defendantsviolated his constitutional rights by depriving him of toilet paper, soap, and toothbrushes for about three days and depriving him of food and water for about eight hours. (ECF Nos. 3 (the “Complaint”); 16 (the “Amended Complaint”)). Defendants now move, pursuant to Federal Rule of Civil Procedure 12(b)(6) and the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (“PLRA”), to dismiss the Amended Complaint for failure to exhaust administrative remedies and failure to state a claim. (ECF Nos. 19 (the “Motion”); 21 at 10-11).
Defendants are NYC/DOC/VCBC Warden Carter (“Carter”), NYC/DOC/VCBC Housing Unit 3-AA Captain Guerra (“Guerra”), NYC/DOC/VCBC Facility Storehouse Captain Horton (“Horton”), NYC/DOC/VCBC Intake Supervisor Jermaine Slack (#1849) (“Slack”), and NYC/DOC/VCBC Intake Captain Carlo Ciquero (#1830) (“Ciquero”). (ECF No. 16 at 3).
For the reasons set forth below, I respectfully recommend that the Motion be GRANTED and that this action be DISMISSED WITH PREJUDICE.
II. BACKGROUND
A. Factual Background
The Court summarizes the factual allegations in the Amended Complaint, which the Court accepts as true for purposes of the Motion. See N.J. Carpenters Health Fund v. Royal Bank of Scot. Grp., PLC, 709 F.3d 109, 119-20 (2d Cir. 2013); see also Corbett v. City of N.Y., No. 15 Civ. 09214 (GHW), 2016 WL 7429447, at *2-3 (S.D.N.Y. Dec. 22, 2016).In addition, because Daniels is pro se, the Court may consider and include in this summary “factual allegations contained in [his] opposition papers and other court filings.” Rodriguez v. Rodriguez, No. 10 Civ. 891 (LGS), 2013 WL 4779639, at *1 (S.D.N.Y. July 8, 2013); see Davila v. Lang, 343 F.Supp.3d 254, 267 (S.D.N.Y. 2018) (“Because [Plaintiff] is proceeding pro se, the Court may consider new facts raised in opposition papers to the extent that they are consistent with the complaint, treating the new factual allegations as amending the original complaint.”); Sommersett v. City of New York, No. 09 Civ. 5916 (LTS) (KNF), 2011 WL 2565301, at *3 (S.D.N.Y. June 28, 2011) (explaining that, in deciding motion to dismiss pro se complaint, court may consider statements in legal memoranda or other “‘papers to supplement or clarify the plaintiff's pleaded allegations'”) (quoting Milano v. Astrue, No. 05 Civ. 6527 (KMW) (DF), 2007 WL 2668511, at *2 (S.D.N.Y. Sept. 7, 2007)).
Unless otherwise noted, all internal citations and quotation marks are omitted from citations in this Report and Recommendation.
On October 5, 2021, in Unit 3-AA at VCBC, Daniels “was without toilet paper . . . [,] soap . . . [, and] toothbrushes . . . for ap[p]rox[imately] three days.” (ECF No. 16 at 4). Carter and Guerra “knew or should have known of [Daniels'] dire living conditions for what amounted to three whole days[.]” (Id.) “On the fourth day this issue was brought up with the housing area captain[,]” Guerra, (ECF No. 25 at 1), who “pressed her emergency security alarm,” leading to Daniels and other inmates in Unit 3-AA “being put into hand[] restraint[s] and taken to the facility intake holding cell.” (ECF No. 16 at 5). In the holding cell, the “water was turned off, toilets were not flushable, [and] there was no food or water provided for ap[p]rox[imately] eight hours.” (Id.) As a result of these conditions, Daniels suffered “physical and psychological abuse[,]” including “fatigue[,] naus[e]a, headaches, anxiety, depression, [and] fear of additional reprisals.” (Id.)
Daniels “affirm[ed] that [he is] aware of the DOCCS grievance procedure as detailed in the Department's Inmate Rule Book[,]” and has previously filed grievances about other matters. (ECF No. 25 at 2-3 (the “Prior Grievances”)). Daniels did not receive responses to the Prior Grievances, however, which he contends “evidences the continued dysfunction of the grievance process at [VCBC].” (Id. at 3). He contends that “the lack of action on behalf of [Carter] has made [his] ability to exhaust [his] administrative remedies impossible[.]” (Id. at 4).
B. Procedural History
In a complaint delivered “to prison authorities for mailing” on October 12, 2021, another inmate named Michael Lee (“Lee”) asserted that the events of October 5, 2021 violated the Eighth and Fourteenth Amendment rights of 28 VCBC inmates, including himself and Daniels, and requested compensatory damages of $1,500 and punitive damages of $5,000 per plaintiff. (ECF No. 3 at 1, 4-5, 7, 10). Named as Defendants were Carter, Guerra, and Horton, as well as Captain “John Doe.” (ECF No. 3 at 1, 3). The Complaint also sought an order “deterring [Defendants] from using corporal punishment as a means of punishment on Plaintiffs . . . [,]” and requiring that Defendants provide the plaintiffs with “[t]he [h]yg[i]ene material[s] that the N.Y. City Department of Correction [(‘DOC')] policies obligate each facility to provide.” (ECF No. 3 at 6).
On November 1, 2021, the Honorable Laura Taylor Swain severed the claims of all plaintiffs listed in the Complaint, including Daniels, and ordered each action be docketed as a separate civil action. (ECF No. 1). On December 9, 2021, the Honorable Analisa Torres, requested Carter, Horton, and Guerra to waive service, directed the New York City Law Department, which represents the DOC to ascertain and provide to Daniels the identity and badge number of “Captain John Doe,”and within 30 days of receiving that information, directed Daniels to file “an amended complaint naming the newly identified individual as a defendant.” (ECF No. 7 at 12). On January 4, 2022, Carter, Guerra, and Horton returned executed waivers of service. (ECF No. 12). On February 4, 2022, Defendants served Daniels with a letter identifying the names of the three captains who supervised VCBC's intake procedures on October 5, 2021. (ECF No. 15 at 1). In the Amended Complaint, which Daniels delivered to prison authorities for mailing on February 10, 2022, Daniels substituted Slack and Ciquero for “Captain John Doe,” and asserted Eighth and Fourteenth Amendment claims based on the deprivation of toiletries, food, and water on October 5, 2021. (Compare ECF No. 16 at 3-5 with ECF No. 3 at 3).
See Valentin v. Dinkins, 121 F.3d 72, 76 (2d Cir. 1997).
On March 7, 2022, Defendants filed the Motion, with a notice pursuant to Local Rule 12.1 warning Daniels that the Court might treat the Motion as one for summary judgment under Federal Rule of Civil Procedure 56, and that his failure to respond with “sworn affidavits and other papers as required by Rule 56(e)” could result in dismissal of the Amended Complaint. (ECF No. 20). On April 15, 2022, Daniels filed a letter in opposition to the Motion (ECF No. 25), and on April 29, 2022, Defendants filed a reply. (ECF No. 26). Judge Torres referred the Motion for this Report and Recommendation. (ECF No. 24).
III. LEGAL STANDARDS
A. Motion to Dismiss
In analyzing a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court must assess whether the complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
To survive a motion to dismiss, “the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient ‘to raise a right to relief above the speculative level.'” ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 555). In evaluating a motion to dismiss, the Court “accept[s] all facts alleged in the complaint as true and draw[s] all reasonable inferences in the plaintiff's favor.” Sanderson v. Leg Apparel LLC, No. 19 Civ. 8423 (GHW), 2020 WL 7342742, at *3 (S.D.N.Y. Dec. 14, 2020) (citing Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 124 (2d Cir. 2008) (per curiam)). The Court is “‘not required to credit conclusory allegations or legal conclusions couched as factual allegations.'” Sanderson, 2020 WL 7342742, at *3 (quoting Rothstein v. UBS AG, 708 F.3d 82, 94 (2d Cir. 2013)). “[A] complaint that offers ‘labels and conclusions' or ‘naked assertion[s]' without ‘further factual enhancement' will not survive a motion to dismiss.” Sanderson, 2020 WL 7342742, at *3 (quoting Iqbal, 556 U.S. at 678). “‘Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'” Sanderson, 2020 WL 7342742, at *3 (quoting DeJesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 87-88 (2d. Cir. 2013)). For purposes of Rule 12(b)(6), “the complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).
In deciding a motion to dismiss, “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) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)). Nonetheless, “a pro se plaintiff must still plead enough facts to state a claim to relief that is plausible on its face.” Gottesfeld v. Anderson, No. 18 Civ. 10836 (PGG), 2020 WL 1082590, at *5 (S.D.N.Y. Mar. 6, 2020) (citing Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)). Despite the obligation “to draw the most favorable inferences” from a complaint, the Court “cannot invent factual allegations that [a pro se plaintiff] has not pled.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). “The Court need not accept allegations that are ‘contradicted by other matters asserted or relied upon or incorporated by reference by a plaintiff in drafting the complaint.'” Tsinberg v. City of New York, No. 20 Civ. 749 (PAE), 2021 WL 1146942, at *4 (S.D.N.Y. Mar. 25, 2021) (quoting Fisk v. Letterman, 401 F.Supp.2d 362, 368 (S.D.N.Y. 2005)).
“Section 1983 grants a right of action to any ‘citizen of the United States or other person within the jurisdiction thereof' who has been deprived of ‘any rights, privileges, or immunities secured by the Constitution' or federal law by a person acting under color of state law.” Hirsch v. City of New York, 300 F.Supp.3d 501, 508 (S.D.N.Y.) (quoting 42 U.S.C. § 1983), aff'd, 751 Fed.Appx. 111 (2d Cir. 2018); see Pridgen v. Jail, No. 22 Civ. 2294 (ER), 2022 WL 1082411, at *1 (S.D.N.Y. Apr. 6, 2022) (“Section 1983 provides that an action may be maintained against a ‘person' who has deprived another of rights under the ‘Constitution and Laws.'”) (quoting 42 U.S.C. § 1983). To state a Section 1983 claim, “a complaint must allege that the defendant (1) deprived the plaintiff of rights secured by the Constitution and laws of the United States, (2) while acting under color of state law.” Chamberlain v. City of White Plains, 986 F.Supp.2d 363, 381 (S.D.N.Y. 2013) (citing 42 U.S.C. § 1983); see Lurch v. Chaput, No. 16 Civ. 2517 (AT), 2022 WL 889259, at *5 (S.D.N.Y. Mar. 25, 2022) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). “In order to state a claim under [Section] 1983, a plaintiff must allege that he was injured by either a state actor or a private party acting under color of state law.” Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002); see Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978).
“To act under color of state law or authority for purposes of Section 1983, the defendant must ‘have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'” Savarese v. City of New York, 547 F.Supp.3d 305, 337 (S.D.N.Y. 2021) (quoting Monsky v. Moraghan, 127 F.3d 243, 245 (2d Cir. 1997)). The Court must assess whether the alleged constitutional violations “have been committed by a person acting under color of state law[.]” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)). The burden is on the plaintiff to “indicate that the challenged action was ‘fairly attributable to the State.'” Vasquez v. Garcia, 432 F.Supp.3d 92, 97 (D. Conn. 2019) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)).
Daniels' claims about the conditions of his pre-trial detention are governed by the Due Process Clause of the Fourteenth Amendment, rather than the Eighth Amendment. See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) (“‘[T]he state does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law.'”) (quoting Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977)); Vail v. City of New York, No. 18 Civ. 11822 (VEC) (SLC), 2020 WL 3548074, at *3 (S.D.N.Y. May 15, 2020), adopted by, 2020 WL 3547736 (S.D.N.Y. June 30, 2020). “[A] pre-trial detainee's constitutional rights are at least as great as those of a prisoner,” and thus the protections under the Fourteenth Amendment Due Process Clause “are coextensive with those afforded by the Eighth Amendment.” Jean-Laurent v. Wilkerson, 438 F.Supp.2d 318, 324 (S.D.N.Y. 2006); see Virella v. Pozzi, No. 05 Civ. 10460 (RWS), 2006 WL 2707394, at *3 (S.D.N.Y. Sept. 20, 2006) (“The Second Circuit applies the same standard to excessive force claims brought under the Fourteenth Amendment as under the Eighth Amendment.”).
1. Conditions of Confinement
To state a Section 1983 claim based on the conditions of confinement, a pre-trial detainee “must plead facts that would, if believed, give rise to a plausible inference of deliberate indifference to a serious deprivation.” Tyler v. Argo, No. 14 Civ. 2049 (CM) (DCF), 2014 WL 5374248, at *6 (S.D.N.Y. Oct. 10, 2014) (citing Estelle v. Gamble, 429 U.S. 97, 104-05 (1976)). This requires the plaintiff to satisfy both an objective and a subjective standard. See Darnell v. Piniero, 849 F.3d 17, 29 (2d Cir. 2017). The objective standard requires a “showing that the challenged conditions were sufficiently serious to constitute objective deprivations of the right to due process[.]” Id. The subjective standard requires a “showing that the officer acted with at least deliberate indifference to the challenged conditions[,]” “acted intentionally[,]” or “recklessly failed to act with reasonable care.” Id. at 29, 35.
a. Objective element
Although the Constitution “does not mandate comfortable prisons,” Rhodes v. Chapman, 452 U.S. 337, 349 (1981), prison officials “must provide humane conditions of confinement[.]” Farmer v. Brennan, 511 U.S. 825, 832 (1994). “Courts assess allegations of unconstitutionally unsanitary conditions of confinement on a case-by-case basis according to their severity and duration.” Vail, 2020 WL 3548074, at *3 (citing Darnell, 849 F.3d at 30). “[T]here is no static test to determine whether a[n unsanitary condition] is sufficiently serious; [t]he conditions themselves must be evaluated in light of contemporary standards of decency.” Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012). A condition is “‘sufficiently serious'” if it denies the pre-trial detainee “‘the minimal civilized measure of life's necessities.'” Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001) (quoting Farmer, 511 U.S. at 834); D'Attore v. New York City, No. 10 Civ. 3102 (JSR) (MHD), 2011 WL 3629166, at *5 (S.D.N.Y. June 2, 2011) (quoting Gaston), adopted as modified, 2011 WL 3629018 (S.D.N.Y. Aug. 17, 2011). The conditions of confinement “may be aggregated to rise to the level of a constitutional violation, but ‘only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise.'” Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013) (quoting Wilson v. Seiter, 501 U.S. 294, 304 (1991)). “Moreover, while a serious injury is not necessary to establish an objective deprivation [], ‘the seriousness of the harms suffered . . . may shed light on the severity of an exposure.'” Vail, 2020 WL 3548074, at *4 (quoting Willey v. Kirkpatrick, 801 F.3d 51, 68 (2d Cir. 2015)).
b. Subjective element
The subjective element of a Section 1983 conditions of confinement claim requires the pre-trial detainee to show that the “defendant-official acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety.” Darnell, 849 F.3d at 35. “Mere negligence is insufficient.” Vail, 2020 WL 3548074, at *4 (citing Darnell, 849 F.3d at 36); see Tyler, 2014 WL 5374248, at *6 (“‘Mere negligence' and ordinary lack of due care for a prisoner's interest or safety does not violate the Constitution.”) (quoting Farmer, 511 U.S. at 835). The “official's state of mind must amount to ‘the equivalent of criminal recklessness; namely, when the prison official knows of and disregards an excessive risk to inmate health or safety[.]'” Tyler, 2014 WL 5374248, at *6 (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)).
C. PLRA
1. Statutory Exhaustion
A pre-trial detainee asserting a Section 1983 claim must first exhaust his administrative remedies in accordance with the PLRA. See Ruggiero v. Cnty. of Orange, 467 F.3d 170, 173 (2d Cir. 2006); Massey v. City of New York, No. 20 Civ. 5665 (GBD) (DF), 2021 WL 4943564, at *1 (S.D.N.Y. Aug. 30, 2021) (“Massey I”) (applying PLRA exhaustion requirements to pre-trial detainee), adopted by, 2021 WL 4459459 (S.D.N.Y. Sept. 29, 2021), aff'd, 2021 WL 5234977 (S.D.N.Y. Nov. 9, 2021); Arnold v. Westchester Cnty., No. 09 Civ. 3727 (JSR) (GWG), 2010 WL 3397375, at *4-6 (S.D.N.Y. Apr. 16, 2010) (same), adopted by, 2010 WL 3397372 (S.D.N.Y. Aug. 25, 2010). The PLRA provides that “[n]o action shall be brought with respect to prison conditions under [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). “Exhaustion is ‘mandatory' and ‘applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes[,]'” or allege excessive force, the denial of adequate medical care, or another wrong. Hernandez v. Coffey, 582 F.3d 303, 305 (2d Cir. 2009) (quoting Porter v. Nussle, 534 U.S. 516, 524 (2002)); see Ross v. Blake, 578 U.S. 632, 639 (2016) (holding that PLRA's “mandatory exhaustion regime[] foreclose[ed] judicial discretion” to craft exceptions to exhaustion requirement).
Exhaustion under the PLRA means “proper exhaustion” of administrative remedies, i.e., “exhaustion in ‘compliance with an agency's deadlines and other critical procedural rules.'” Lucente v. Cnty. of Suffolk, 980 F.3d 284, 311 (2d Cir. 2020) (quoting Woodford v. Ngo, 548 U.S. 81, 90-91 (2006)). Proper exhaustion requires “using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).” Woodford, 548 U.S. at 90; see also Lowman v. Baird, No. 16 Civ. 6518 (VSB), 2017 WL 6403519, at *5 (S.D.N.Y. Dec. 14, 2017) (“The PLRA requires ‘proper exhaustion,' which obligates prisoners to ‘complete the administrative review process in accordance with the applicable procedural rules-rules that are defined not by the PLRA, but by the prison grievance process itself.'”) (quoting Jones v. Bock, 549 U.S. 199, 218 (2007)).
Failure to exhaust administrative remedies under the PLRA is an affirmative defense, see Johnson v. Rowley, 569 F.3d 40, 45 (2d Cir. 2009), and thus a pre-trial detainee “need not plead administrative exhaustion in his complaint.” Hickman v. City of New York, No. 20 Civ. 4699 (RA) (OTW), 2021 WL 3604786, at *2 (S.D.N.Y. Aug. 12, 2021). The Court may nevertheless dismiss a complaint at the pleading stage for failure to exhaust “if the defense ‘appears on the face of the complaint.'” Antrobus v. Warden of GVRC, No. 11 Civ. 5128 (JMF), 2012 WL 1900542, at *2 (S.D.N.Y. May 25, 2012) (quoting Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74 (2d Cir. 1988)). Thus, “courts within this District routinely grant motions to dismiss where a plaintiff's non-exhaustion is clear from the face of the complaint.” Hickman, 2021 WL 3604786, at *2 (collecting cases); see Stokes v. de Blasio, No. 17 Civ. 7890 (JGK), 2019 WL 132279, at *3 (S.D.N.Y. Jan. 8. 2019) (granting motion to dismiss complaint that showed on its face that inmate did not exhaust administrative procedures); see Rivera v. Anna M. Cross Ctr., No. 10 Civ. 8696 (RJH), 2012 WL 383941, at *2 (S.D.N.Y. Feb. 7, 2012) (“If non[-]exhaustion is clear, a motion to dismiss should be granted.”).
2. DOC Exhaustion Procedures
Pursuant to Directive 3367R-A, DOC “maintains a robust administrative grievance procedure-the [Inmate Grievance and Request Program (‘IGRP')]-for inmates [and pre-trial detainees] at all of its facilities[,]” including those at Rikers Island. Leneau v. City of New York, No. 16 Civ. 0893 (RA), 2018 WL 583120, at *3 (S.D.N.Y. Jan. 26, 2018); see Hickman, 2021 WL 3604786, at *3 (“At Rikers Island, grievance procedures are governed by the [IGRP].”). The IGRP applies to “[a]ny inmate who is directly and personally affected by an issue, condition, practice, service, or lack of an accommodation with regard to any issue that may arise in connection with their incarceration or action relating to [his] confinement[.]” IGRP § I. The IGRP applies to complaints based on the conditions of confinement. See Taylor v. N.Y.C. Dep't of Corr., 849 Fed.Appx. 5, 6 (2d Cir. 2021) (summary order) (recognizing that IGRP applied to inmate's complaint “that he was given inadequate clothing in prison, and that he experienced difficulty in mailing legal correspondence and accessing legal services”).
The Court takes judicial notice of the IGRP in analyzing the Motion. See Massey I, 2021 WL 4943564, at *6 n.9 (taking judicial notice of IGRP in deciding motion to dismiss pre-trial detainee's Section 1983 claims); Sanders v. City of New York, No. 16 Civ. 7246 (PGG), 2018 WL 3117508, at *4 n.1 (S.D.N.Y. June 25, 2018) (“It is a ‘common practice in this District' to take ‘judicial notice of the version of the IGRP in effect at the time of the events giving rise to [a prisoner's] claim.'”) (quoting Leneau, 2018 WL 583120, at *1); see also Evans v. N.Y. Botanical Garden, No. 02 Civ. 3591 (RWS), 2002 WL 31002814, at *4 (S.D.N.Y. Sept. 4, 2002) (“A court may take judicial notice of the records of state administrative procedures, as these are public records, without converting a motion to dismiss to one for summary judgment.”). Directive 3376R-A was in effect on October 5, 2021 and is therefore the governing grievance procedure for Daniels' claims. See https://www1.nyc.gov/assets/doc/downloads/directives/Directive 3376R-A.pdf (last visited Nov. 22, 2022).
The IGRP requires an inmate with a grievance to:
first either file a grievance, using the Form 7101R (“OCGS Statement Form”), or call 311 to file a complaint. IGRP §§ V(F), (H). Within seven business days, the Grievance Coordinator will assess the inmate's submission and determine whether it should be dismissed and closed, referred to a different entity, or investigated further. IGRP § VI(A)(1). Upon the close of a further investigation, the Grievance Coordinator will meet with the inmate to propose a resolution. Id. if the inmate is not satisfied with the proposed resolution of the grievance, he can then appeal to the Commanding Officer. Id. § VII(A). If the inmate is dissatisfied with the decision of the Commanding Officer, he may then submit an appeal to the Division Chief. Id. § VIII(A)(1[-]2). Lastly, if the inmate is dissatisfied with the decision of the Division Chief, he may appeal to the Central Office Review Committee (“CORC”). Id. § IX(A). The CORC's disposition constitutes the final decision on the grievance. Id.Massey I, 2021 WL 4943564, at *7. The IGRP requires that “[a]n inmate must use the grievance process to obtain a final response from the [DOC] regarding any grievance[.]” IGRP § V(K). An inmate's prediction that his grievance will be denied, “even if wholly reasonable, does not warrant depriving the prison administration of the opportunity to address the claim in the first instance, a paramount goal of the PLRA.” Johnson v. Killian, No. 07 Civ. 6641 (LTS) (DFE), 2009 WL 1066248, at *5 (S.D.N.Y. Apr. 21, 2009); see Dixon v. Laboriel, No. 01 Civ. 3632 (LAP), 2010 WL 2365860, at *4 (S.D.N.Y. June 10, 2010) (explaining that “the alleged ineffectiveness of the administrative remedies that are available does not absolve a prisoner of his obligation to exhaust such remedies”), aff'd, 433 Fed.Appx. 48 (2d Cir. 2011) (summary order). In this District, “[i]t is well-established that, even if an inmate does not receive a response to his grievance, he fails to exhaust administrative remedies if he does not avail himself of the available appeals process.” Leneau, 2018 WL 583120, at *3 (citing Martinez v. Schriro, No. 14 Civ. 3965 (KMW) (RLE), 2017 WL 87049, at *2 (S.D.N.Y. Jan. 9, 2017)); see Tyler, 2014 WL 5374248, at *4 (“It is well settled that an inmate who receives no response to his grievance must continue with the next steps in the grievance process.”). It is equally well-settled that “proper exhaustion” means that an inmate must “not only file an initial grievance, but also [] exhaust his claims through each level of the specified grievance process.” Massey I, 2021 WL 4943564, at *7; see Perez v. City of New York, No. 14 Civ. 7502 (LGS), 2015 WL 3652511, at *3 (S.D.N.Y. June 11, 2015) (noting that DOC “inmate must take each of the four [IGRP] steps to exhaust the administrative grievance process”) (citing Tyler, 2014 WL 5374248, at *4); Banks v. Mental Health Clinicians, No. 11 Civ. 7848 (LAP), 2012 WL 6201259, at *3-4 (S.D.N.Y. Dec. 11, 2012) (granting motion to dismiss claims of Rikers Island inmate who filed grievance but failed to appeal and therefore did not exhaust IGRP process under PLRA); Graham v. Cochran, No. 96 Civ. 6166 (LTS) (RLE), 2002 WL 31132874, at *6 (S.D.N.Y. Sept. 25, 2002) (“Courts have interpreted the [PLRA] to require complete exhaustion in accordance with institutional procedures.”).
3. Excusing the Exhaustion Requirement
The Court may excuse an inmate's failure to exhaust only on a finding that the administrative remedies were “unavailable” to him. Massey I, 2021 WL 4943564, at *8 (quoting Girodes v. City of New York, No. 17 Civ. 6789 (RWS), 2018 WL 3597519, at *4 (S.D.N.Y. July 26, 2018)). The Supreme Court explained in Ross v. Blake the three circumstances in which administrative remedies may be deemed unavailable:
First, . . . an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end- with officers unable or consistently unwilling to provide any relief to aggrieved inmates .... Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use. In this situation, some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it .... And finally, the same is true when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.136 S.Ct. at 1859-60. With this guidance, the Second Circuit has explained that “[t]he test for deciding whether the ordinary grievance procedures were available must be an objective one: that is, would ‘a similarly situated individual of ordinary firmness' have deemed them unavailable.” Lucente, 980 F.3d at 311-12 (quoting Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004), abrogated on other grounds, Ross, 136 S.Ct. at 1855)).
IV. DISCUSSION
Liberally construing the SAC, the Court interprets Daniels to be asserting claims under Section 1983 that Defendants violated his Fourteenth Amendment rights when they deprived him of toiletries, food, and water on October 5, 2021. (ECF Nos. 16; 25 at 2). See, e.g., Massey I, 2021 WL 4943564, at *1 (interpreting pretrial detainee's allegations to assert Section 1983 claims). In the Motion, Defendants argue that the Amended Complaint must be dismissed because Daniels has failed to exhaust his administrative remedies, and has failed to allege facts that rise to the level of a constitutional violation. (ECF Nos. 21; 26).
A. Daniels Has Failed To Exhaust His Administrative Remedies.
Daniels' claims are based on his pre-trial detention on October 5, 2021. (ECF No. 16 at 45). Daniels does not allege in either the Complaint or the Amended Complaint that he filed a grievance based on these conditions, stating only that he “brought up[,]” (ECF No. 25 at 1), “this issue of substandard living conditions up to Captain Guerra[.]” (ECF No. 16 at 5; see generally ECF No. 3 at 4-5)). The Complaint was dated October 7, 2021, and was “deliver[ed] . . . to prison authorities for mailing” on October 12, 2021. (ECF No. 3 at 7). Less than five business days elapsed from the date Daniels' alleged injuries occurred until the date of the Complaint, but the IGRP allows seven days for the first level in the grievance process, plus five days for the appeal to the commanding officer, and yet another five days for the division chief to consider grievance appeals. IGRP §§ VI(A)(1), VII(B), VIII(A)(B). Thus, Daniels “could not have participated in the entire grievance process [under the IGRP] before filing his [C]omplaint.” Stokes, 2019 WL 132279, at *3 (dismissing for failure to exhaust IGRP procedures where complaint was filed fourteen days after alleged incident); Cary v. City of New York, No. 17 Civ. 6443 (RWS), 2018 WL 1581988, at *3 (S.D.N.Y. Mar. 27, 2018) (dismissing for failure to exhaust IGRP procedures where complaint was submitted less than 30 days after alleged incident); Perez, 2015 WL 3652511, at *3 (dismissing for failure to exhaust IGRP procedures where complaint was signed “just one week after the events in question occurred”); Pierre-Louis v. Martinez, No. 12 Civ. 2240 (NGG) (LB), 2014 WL 4161960, at *4-5 (E.D.N.Y. Aug. 19, 2014) (dismissing for failure to exhaust IGRP where complaint was submitted three weeks after the date of the alleged incident); see also Lopez v. Cipolini, 136 F.Supp.3d 570, 581-82 (S.D.N.Y. 2015) (dismissing for failure to exhaust where “it [was] implausible that Plaintiff was able to exhaust her administrative remedies within 10 days”).
“[A] pro se prisoner's complaint is considered filed as of the date that the plaintiff delivers the complaint to prison officials to be filed.” Stokes, 2019 WL 132279, at *3 n.3 (citing Dory v. Ryan, 999 F.2d 679, 682 (2d Cir. 1993)).
Because it is apparent from the face of the Complaint that Daniels failed to exhaust the available administrative remedies in the IGRP, as required under the PLRA, I respectfully recommend that the Motion be GRANTED.
B. Daniels' Failure To Exhaust Is Not Excusable.
Daniels asserts that the “dysfunction of the grievance process at” VCBC rendered his “ability to exhaust [his] administrative remedies impossible[.]” (ECF No. 25 at 3-4). Applying a liberal construction to Daniels' pro se submissions, the Court interprets him to be arguing that officials' failure to address his past grievances means that the administrative remedies under the IGRP “should be considered unavailable to him” under Ross. Massey I, 2021 WL 4943564, at *9 (interpreting pro se inmate to be asserting that exhaustion was excused because administrative remedies were unavailable).
Daniels has failed to demonstrate that the IGRP were unavailable to him as would justify excusing him from the exhaustion requirement under the PLRA. Daniels admits that he filed grievances on other matters under the IGRP before and after October 5, 2021, (ECF No. 25 at 3), demonstrating that the IGRP procedures were not only available, but that he knew how to employ them and simply chose not to. See Taylor, 849 Fed.Appx. at 8 (“The administrative exhaustion process is not unavailable for purposes of the PLRA when an inmate simply chooses not to avail himself of it.”); Perez, 2015 WL 3652511, at *4 (finding that plaintiff's timely filing of grievance “indicate[d] that the procedure was available to him”). In addition, “prison officials' failure to respond to some of [an inmate]'s grievances [does] not render the IGRP administrative procedure unavailable.” Taylor, 849 Fed.Appx. at 8; see Lopez, 136 F.Supp.3d at 584 (finding that any delay by officials in responding to grievance did not excuse failure to exhaust remaining grievance procedures). Moreover, nothing in Daniels' submissions “suggests Defendants or any other official prevented [him] from filing a grievance[.]” Perez, 2015 WL 3652511, at *4. Nor can the Court discern any other permissible ground to excuse Daniels' failure to comply with the IGRP. The Court therefore finds that Daniels' failure to exhaust his administrative remedies “cannot be excused on the ground that a meaningful avenue for exhaustion was unavailable.” Massey I, 2021 WL 4943564, at *11.
In sum, because it is plain from the face of the Complaint that Daniels did not exhaust his administrative remedies under the IGRP, and he has not shown that his failure to exhaust was excusable, I respectfully recommend that the Motion be GRANTED.
C. Daniels Has Failed to State a Plausible Section 1983 Claim.
Even if Daniels adequately exhausted his administrative remedies under the IGRP, the Court finds that his allegations that he was deprived of toilet paper, soap, and toothbrushes for approximately three days, and food and water for eight hours, fail to state a constitutional violation. Under the objective prong of a conditions of confinement claim, “‘only extreme deprivations are sufficient to sustain a [] claim.'” Hallett v. Davis, No. 12 Civ. 4646 (WHP), 2012 WL 4378020, at *6 (S.D.N.Y. Sept. 25, 2012) (quoting Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir. 1999)). The Second Circuit has recognized “that deprivation of toiletries, [] especially toilet paper, can rise to the level of unconstitutional conditions of confinement[.]” Trammel v. Keane, 338 F.3d 155, 165 (2d Cir. 2003). “[T]emporary deprivations of hygiene items,” however, “including toothbrushes, for periods of up to two weeks[,] do not constitute an objectively serious condition of confinement.” Davies v. Hickley, No. 20 Civ. 940 (VAB), 2021 WL 2400276, at *10 (D. Conn. June 11, 2021) (collecting cases and holding that deprivation of toothbrush for three weeks was not “a plausibly serious deprivation of [a] basic human need”); see, e.g., Riddick v. Arnone, No. 11 Civ. 631 (SRU), 2012 WL 2716355, at *5 (D. Conn. July 9, 2012) (holding that denial of toothbrush, toothpaste, deodorant, and soap for ten days did not violate Eighth Amendment).
Here, Daniels' lack of access to toiletries for approximately three days represents a “temporary deprivation[] [that] do[es] not amount to a denial of ‘the minimal civilized measure of life's necessities' and therefore do[es] not give rise to a constitutional violation.” Lee v. Carter, No. 21 Civ. 8629 (PAE) (RWL), 2022 WL 3441654, at *7 (S.D.N.Y. July 28, 2022) (quoting Rhodes, 452 U.S. at 347 and recommending dismissal of pretrial detainee's claim based on deprivation of “toilet paper, soap[,] and toothbrushes for approximately two to three days and of water or food for approximately seven to eight hours”). The three-day period that Daniels claims he was without toiletries is shorter than other periods that courts in this Circuit have deemed insufficient to demonstrate a constitutional violation. See Trammel, 338 F.3d at 165 (holding that 17-day deprivation of soap, toothpaste, and toothbrush did not rise to constitutional violation); Beauvoir v. Falco, 345 F.Supp.3d 350, 373-74 (S.D.N.Y. 2018) (holding that deprivation of toiletries, including a toothbrush and toilet paper “for four to five days” did not constitute unconstitutional conditions of confinement); Fernandez v. Armstrong, No. 02 Civ. 2252 (CFD), 2005 WL 733664, at *5 (D. Conn. Mar. 30, 2005) (holding that 16-day deprivation of hygiene items such as toothpaste, shampoo, and soap did not establish unconstitutional conditions of confinement).
Nor is the eight-hour deprivation of food and water “objectively, ‘sufficiently serious'” to give rise to a constitutional violation as a matter of law. Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). The Court must consider “[t]he length of confinement . . . in deciding whether the confinement meets constitutional standards.” Hutto v. Finney, 437 U.S. 678, 686 (1978). A few hours without access to nutrition does not equate to a constitutionally inadequate condition of confinement. See Lee, 2022 WL 3441654, at *8 (holding that deprivation of food and water for seven to eight hours “falls short of a constitutional violation”); Porter v. Bunch, No. 16 Civ. 5935 (KMK), 2019 WL 1428431, at *6 (S.D.N.Y. Mar. 29, 2019) (holding that lack of water for eight hours was not a clear deprivation of “the minimal civilized measure of life's necessities”); Livigni v. Ortega, No. 15 Civ. 4954 (CM), 2016 WL 6143351, at *3 (S.D.N.Y. Oct. 19, 2016) (holding that detention on transport bus for seven hours without access to water did not objectively “pose an unreasonable risk of serious damage to his health”); Webster v. City of New York, 333 F.Supp.2d 184, 200 (W.D.N.Y. 2004) (holding that deprivation of food and water to pretrial detainees for several hours did not constitute due process violation); see also Hallett, 2012 WL 4378020, at *3 (holding that plaintiff's “exposure to poor ventilation for a few hours” did not state a viable conditions-of-confinement claim). The “temporary and minor deprivations” that Daniels alleges, “judged independently or in the aggregate, did not subject [him] to unreasonable health and safety risks.” Calhoun v. N.Y.C. Dep't of Corr., No. 10 Civ. 182 (LAK) (HBP), 2014 WL 144659, at *9 (S.D.N.Y. Jan. 14, 2014).
Even if Daniels' allegations satisfied the objective prong of a conditions-of-confinement claim, however, the Court finds that they nevertheless fail to satisfy the subjective prong, which requires him to show that the Defendants imposed the alleged conditions with deliberate indifference. See Farmer, 511 U.S. at 834; see Hathaway, 37 F.3d at 66 (explaining that deliberate indifference does not exist unless an “official ‘knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference'”) (quoting Farmer, 511 U.S. at 837). By Daniels' own admission, no official was made aware of the lack of toiletries until “the fourth day[,]” (ECF No. 25 at 1), and he has failed to allege that, at any earlier point, “Defendants knew of an excessive risk to his health or safety and deliberately disregarded it.” Dillon v. City of New York, No. 12 Civ. 7113 (LAP), 2013 WL 6978959, at *4 (S.D.N.Y. Nov. 18, 2013) (granting motion to dismiss claim based on alleged deprivation of shower and toothpaste).
Accordingly, because Daniels' allegations satisfy neither the objective nor the subjective prongs of a conditions-of-confinement claim, I respectfully recommend that the Motion be GRANTED on the alternative ground of failure to state a claim.
D. Dismissal With Prejudice and Without Leave to Amend Is Warranted.
The Amended Complaint is Daniels' second attempt to allege a plausible claim for relief, and allowing him to amend would be a third. See Binn v. Bernstein, No. 19 Civ. 6122 (GHW) SLC), 2020 WL 4550312, at *34 (S.D.N.Y. July 13, 2020) (“To grant Plaintiffs leave to amend would be allowing them a third bite at the apple, which courts in this district routinely deny.”), adopted by, 2020 WL 4547167 (S.D.N.Y. Aug. 6, 2020); see also Denny v. Barber, 576 F.2d 465, 471 (2d Cir. 1978) (holding that plaintiff was not entitled to a “third go-around”).
Ordinarily, dismissal without prejudice is appropriate for failure to exhaust administrative remedies where the time to do so has not expired. See Berry v. Kerik, 366 F.3d 85, 87 (2d Cir. 2004). “[C]ourts have generally dismissed claims with prejudice where the plaintiff had the opportunity to exhaust administrative remedies, failed to do so, and is no longer able to cure the defect[.]” Massey I, 2021 WL 4943564, at *11 (citing Berry, 366 F.3d at 88); see Felix v. Simon, 303 Fed.Appx. 21, 22 (2d Cir. 2008) (summary order) (affirming dismissal with prejudice where plaintiff failed to exhaust administrative remedies and time to do so had expired). Here, more than one year has passed since the date on which Daniels should have filed a grievance regarding the events of October 5, 2021. See IGRP § XI(B) (providing that, absent extension, grievance must be filed “no more than ten (10) business days from the date the alleged condition or issue relating to their confinement took place or began”). Because the time for filing a grievance has expired, Daniels' failure to exhaust his administrative remedies is uncurable and dismissal with prejudice is appropriate. See Felix, 303 Fed.Appx. at 21; Massey I, 2021 WL 4943564, at *11.
Accordingly, I respectfully recommend that Daniels' claims be dismissed with prejudice and without leave to amend.
V. CONCLUSION
For the reasons set forth above, the Court respectfully recommends that the Motion be GRANTED and this action be DISMISSED WITH PREJUDICE.
* * *
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Torres.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985). If Daniels does not have access to cases cited in this Report and Recommendation that are reported on Westlaw, he may request copies from Moving Defendants' counsel. See Local Civ. R. 7.2.