Summary
denying motion to dismiss First Amendment claim based on "denial of the opportunity to perform ablution on two occasions, one year apart" where the defendants "did not address whether the denials were based upon legitimate penal concerns"
Summary of this case from Porter v. BunchOpinion
No. 02-CV-6030, (SJF)(LB).
November 29, 2004
OPINION ORDER
I. Introduction
Pro se plaintiff Harry Page ("plaintiff"), an inmate in the New York State Department of Correctional Services ("DOCS") custody, commenced this action pursuant to 42 U.S.C. 1983 alleging violations of his right to exercise religion, harassment and retaliation during his incarceration at the Arthur Kill Correctional Facility ("A.K.C.F."). Defendants have moved to dismiss the complaint pursuant to Federal Rules of Civil Procedure ("Fed.R.Civ.P.") 12(b)(1) and 12(b)(6). For the reasons set forth below, the motion is GRANTED in part and DENIED in part.
Plaintiff is currently incarcerated at the Green Haven Correctional Facility.
II. Background
Plaintiff alleges that on October 1, 2001, Officer Hector Laureano ("Laureano") "deliberately blocked the plaintiff from performing his prayer, by refusing to allow plaintiff access to the bathroom sink to perform ablution . . ." before 6:30 A.M. (Compl. at 5). Plaintiff also alleges that while he was en route to an interview regarding an unrelated grievance against another correctional officer, Laureano "began staring at plaintiff in an [sic] hostile and antagonistic manner, as if he [was] trying to intimidate plaintiff . . .", (id. at 5A), and that on August 20, 2002, "while plaintiff was going to the bathroom to make ablution for prayer[,] Officer Laureano stopped plaintiff at the bathroom entrance and told plaintiff that he won't be using the sink this morning, or as long as he is working the dorm to do any of that stupid rituals." (Id.). Finally, plaintiff alleges that Superintendent Dennis Breslin ("Breslin") improperly handled his grievances and complaints because he "allowed this officer to violate the plaintiff's constitutional rights without any proactive stance on the matter, to prevent this officer from retaliating against the plaintiff and from infringing upon the plaintiff's religious rights as a Muslim." (Id.).
"Ablution is a cleansing process required before prayers in the Islamic and Muslim religions." Lopez v. State of New York Dep't of Corr. Servs., No. 94-6708, 1996 WL 396152, at *1 n. 2 (S.D.N.Y. July 15, 1996).
III. Dismissal for Failure to Exhaust Administrative Remedies
A. Legal Standard
1. Exhaustion as Jurisdiction
Defendants have moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) contending that the exhaustion requirement of Prison Litigation Reform Act (" PLRA"), 42 U.S.C. § 1997e (2004), deprives this Court of jurisdiction. (Defs.' Mem. of Law in Supp. of Mot. to Dismiss at 3). However, subsequent to the filing of the instant motion, the Second Circuit held that exhaustion under the PLRA is not jurisdictional, Richardson v. Goord, 347 F.3d 431, 434 (2d Cir. 2003), but an affirmative defense. Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004); Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir. 1999). Since exhaustion is not jurisdictional, a Rule 12(b)(1) motion is not the appropriate mechanism with which to resolve the exhaustion issue. See, e.g., Ellis v. Guarino, No. 03-6562, 2004 U.S. Dist. LEXIS 16748, at *13-*14 (S.D.N.Y. Aug. 24, 2004).
Since the failure to exhaust under the PLRA does not amount to a failure to state a claim, a motion to dismiss pursuant to Rule 12(b)(6) is also not appropriate unless "failure to exhaust is apparent from the face of the complaint. . . ." McCoy v. Goord, 255 F.Supp.2d 233, 249 (S.D.N.Y. 2003); see also Rivera v. Goord, No. 03-830, 2004 WL 2151089, at *4 (W.D.N.Y. Sept. 22, 2004) (same); Ellis, 2004 U.S. Dist. LEXIS 16748, at *14 (same).
The complaint only alleges generally that plaintiff "[f]iled grievances and written complaints to the Superintendent and other officials" (id. at 4) and there is no allegation that plaintiff exhausted his remedies via administrative appeals with respect to the grievances that he filed. Thus, it is not apparent from the face of the complaint that plaintiff exhausted his administrative remedies. (Compl.).
If exhaustion is unclear from the face of the complaint, a defendant's motion to dismiss should be converted to one for summary judgment pursuant to Rule 12(b) for the narrow purpose of determining whether the plaintiff exhausted his administrative remedies. Rivera, 2004 WL 2151089, at *4; Ellis, 2004 U.S. Dist. LEXIS, at *14-*15; McCoy, 255 F.Supp.2d at 251. Rule 12(b) provides that if, on a Rule 12(b)(6) motion, "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment" and all parties must be given a reasonable opportunity to present all pertinent material. Fed.R.Civ.P. 12(b). Since both sides have submitted extrinsic material that will not be excluded by the Court, and since both sides have had a reasonable opportunity to present material pertinent to the exhaustion issue, defendants' motion to dismiss shall be treated as one for summary judgment for the limited purpose of determining whether plaintiff exhausted his administrative remedies. In a letter dated November 24, 2003, the Court gave plaintiff notice of the conversion of the motion to one for summary judgment and the requirements of Fed.R.Civ.P. 56. (Docket No. 11).
2. Prison Litigation Reform Act
The PLRA provides that "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 jail, prison, or any other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The PLRA's 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, 152 L. Ed. 2d 12, 122 S. Ct. 983 (2002). To satisfy the exhaustion requirement, an inmate must challenge the prison condition in question to the highest level of administrative review before filing suit. Davis v. Reilly, 324 F. Supp. 2d 361, 365 (E.D.N.Y. 2004).
DOCS' administrative remedial framework, the Inmate Grievance Program ("IGP"), consists of a three-step grievance procedure. N.Y. Comp. Codes R. Regs. tit. 7, § 701.7 (2004). First, an inmate must submit an Inmate Grievance Complaint Form to the Grievance Clerk of the Inmate Grievance Resolution Committee ("IGRC") within fourteen (14) days of the alleged occurrence. 7 N.Y.C.C.R.R. § 701.7(a). Second, if the IGRC denies the inmate's claim, he or she must file an appeal with the facility's superintendent. Id. § 701.7(b). Third, if affirmed, the superintendent's decision must be appealed to the Central Office Review Committee ("CORC"). Id. § 701.7(c).
B. Plaintiff's Claims
1. October 1, 2001 Interference with Ablution Ritual
With respect to the claim that Laureano prevented plaintiff from performing ablution on October 1, 2001, defendants concede that plaintiff exhausted his administrative remedies. (Defs.' Mem. of Law in Supp. of Mot. to Dismiss at 8). Plaintiff filed Grievance Number AK-12804-01 and requested that Muslims be allowed to wash up before 6:30 A.M. (Id. exh. A). The claim was denied by the IGRC and subsequently by Superintendent Breslin. (Id.). Apparently misunderstanding plaintiff's grievance which sought permission to use the sink to make ablution prior to 6:30 A.M., the CORC affirmed the Superintendent and ruled thatshowers are unavailable to the inmate population prior to 6:30 A.M. (Id.). The CORC further noted that inmates "do have access to the sinks prior to 6:30 A.M., this allows them the opportunity to perform ritual cleansing prior to making prayer." (Id.). According to the CORC, "a full bath or shower is not mandatory in order for an inmate to complete ritual cleansing." (Id.). Since plaintiff exhausted his administrative remedies, the issue is whether he has stated a claim pursuant to Fed.R.Civ.P. 12(b)(6) as to this grievance.
2. August 6, 2002 Incident
Defendants contend that plaintiff has not exhausted his administrative remedies with regard to claims of Laureano's "intimidating" conduct. (Defs.' Mem. of Law in Supp. of Mot. to Dismiss at 11). In his opposition papers, plaintiff counters that he filed "at least, (3) three grievances against defendant Laureano, including for harassment and other misconduct." (Pl.'s Reply at 3). However, the first grievance refers to Laureano's alleged interference with plaintiff's ablution ritual. The second grievance relates to Laureano's alleged unnecessary inspection of plaintiff's medical brace on August 18, 2002, an incident not alleged in the complaint. The third document is a letter complaining that Laureano harassed plaintiff by allegedly searching his personal property on August 26 and 27, 2002. Neither the grievances nor the letter mention the allegedly harassing conduct referred to in the instant complaint and, in any event, district courts in this circuit have repeatedly held that letters to the DOCS Commissioner or a facility Superintendent do not satisfy the PLRA's exhaustion requirements.See, e.g., Wegman v. Grimmke, 2004 WL 2202642, at *4 (W.D.N.Y. Sept. 30, 2004); Muhammad v. Pico, No. 02-1052, 2003 U.S. Dist. LEXIS 13402, at *32 (S.D.N.Y. Aug. 7, 2003); see also Grant v. Hollins, No. 02-0106, 2003 WL 21105357, at **1 (2d Cir. May 14, 2003) ("This Court has not yet determined whether and in what circumstances a letter to a prison superintendent will be sufficient to satisfy the exhaustion requirement" of the PLRA.). Accordingly, plaintiff failed to exhaust his administrative remedies regarding Laureano's "intimidating" conduct and those allegations are therefore dismissed.
3. August 20, 2002 Interference with Ablution Ritual
Plaintiff filed Grievance Number AK-13502-02 alleging that on August 16, 2002 and August 19, 2002, Laureano prevented him from using the bathroom sink to perform ablution. (Defs.' Mem. of Law in Supp. of Mot. to Dismiss, exh. B). Moreover, plaintiff requested: (1) an investigation of and disciplinary action against Laureano; (2) the issuance of a memo notifying correctional officers that inmates are permitted to use the bathroom sinks to perform ablution; (3) a reading of the memo at roll call to all correctional officers; (4) counseling for Laureano regarding his retaliation against inmates for utilizing the grievance system; and (5) twenty (20) million dollars in compensation. (Id.). Upon plaintiff's appeal, Breslin concluded in a decision dated September 16, 2002 that:
Although the grievance alleges that the incidents took place on August 16, 2002 and August 19, 2002, the allegations contained therein are identical to the description of the August 20, 2002 incident set forth in the complaint. Therefore, the Court will assume that plaintiff filed a grievance regarding the August 20, 2002 incident.
Investigation revealed that some of the allegations were substantiated and hold merit. A memo can be issued to all housing units to allow for early wash up. Officer mentioned in grievance has been notified of procedures. As for grievant being compensated for mental anguish and psychological duress, [it] is beyond the scope of the [Inmate Grievance Resolution] Committee. Grievance is Accepted in part.
(Id.). Officers at A.K.C.F. were thereafter notified that "[i]nmates will be allowed to perform general hygienic cleaning before 0630 hours." (Defs.' Mem. of Law in Supp. of Mot. to Dismiss, exh. B). Since Breslin's decision resolved the matter, plaintiff was not required to appeal to the CORC regarding a complaint that was already redressed by the internal grievance process. See Booth v. Churner, 532 U.S. 731, 736 n. 4, 121 S. Ct. 1819, 149 L. Ed. 2d 958 (2001); Dixon v. Goord, 224 F. Supp. 2d 739, 749 (S.D.N.Y. 2002).
However, plaintiff evidently did not consider his complaints resolved. Although all parties' arguments indicate that plaintiff filed an appeal of Breslin's decision, neither plaintiff nor defendants have submitted any material indicating that plaintiff did. Plaintiff's copy of Breslin's written decision shows that plaintiff signed and dated the "Appeal Statement" portion of the document on September 18, 2002. (Pl.'s Reply, exh. A). However, the document is not signed by the Grievance Clerk, which would signal that the appeal was properly received. (Id.).
Apparently conceding that plaintiff did properly file an appeal to the CORC, defendants argue that "instead of waiting, as required, for a decision from CORC, prior to commencing this action, plaintiff filed this action on or about October 10, 2002." (Defs.' Reply Mem. of Law in Supp. of Mot. to Dismiss at 4). Thus, according to defendants, since plaintiff failed to completely exhaust his administrative remedies prior to commencing suit, this claim must be dismissed. (Id.) (citingMarte v. Coral, No. 02-9990, 2003 U.S. Dist. LEXIS 318, at *1 (S.D.N.Y. Jan. 13, 2003) (dismissing action where complaint stated that plaintiff was awaiting decision on appeal of grievance)). Plaintiff counters that he was informed that his appeal was either misplaced or lost. (Pl.'s Reply at 2).
According to the docket sheet, plaintiff did not file the instant complaint until November 8, 2002. (Docket No. 1).
Defendants have not submitted any evidence that the exhaustion requirement was not met, such as an affidavit from the director of the Inmate Grievance Program stating that the CORC has no record or indication that plaintiff filed an appeal with respect to Grievance Number AK-13502-02. Since it is defendants' burden to prove that plaintiff failed to exhaust his administrative remedies, there is an issue of fact which precludes summary judgment at this time.
On the other hand, assuming that plaintiff did properly file an appeal, there is no indication that he received a formal response from the CORC within the DOCS prescribed time limit. The IGP clerk was required to forward plaintiff's alleged September 18, 2002 appeal to the CORC within five working days of receipt, or by September 25, 2002. See 7 N.Y.C.C.R.R. § 701.7©) (2). Within twenty working days from the time the appeal was received, or by October 23, 2002, the CORC was required to render a decision on the grievance. See id. § 701.7(c)(4). Since there is no evidence that the CORC issued a decision by October 23, 2002, and since plaintiff filed the instant complaint on November 8, 2002, plaintiff would have been justified in filing his federal complaint if any appeal he filed was not timely answered by the CORC. Thus, the issue is whether he has stated a claim pursuant to Fed.R.Civ.P. 12(b)(6) as to this grievance.
4. Breslin's Conduct
Plaintiff contends that in his alleged appeal of Grievance Number AK-13502-02 to the CORC, he stated that Breslin failed to protect his constitutional rights by neglecting to issue a memo that reprimanded Laureano. (Pl.'s Reply at 2). However, Grievance Number AK-13502-02 pertains to Laureano's conduct. Plaintiff did not file an Inmate Grievance Complaint Form, the first step in the grievance procedure, with respect to Breslin's alleged failure to adequately discipline the correctional officers. Nor has the plaintiff plausibly alleged "special circumstances" that justify "`the prisoner's failure to comply with administrative procedural requirements.'" Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004) (quoting Giano v. Goord, 380 F.3d 670, 676 (2d Cir. 2004)). Since plaintiff failed to exhaust his administrative remedies with respect to his allegations against Breslin, this claim is dismissed. Although plaintiff's failure to exhaust his administrative remedies is the basis for dismissal of this claim, it bears noting that even if plaintiff had exhausted available remedies, this claim fails to state a cause of action since he has no right to determine the proper penalty for Laureano.
IV. The Merits
A. Standard of Review
A motion to dismiss should be granted only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of its claim which would entitle it to relief. Levitt v. Bear Stearns Co., 340 F.3d 94, 101 (2d Cir. 2003); Weixel v. Bd. of Educ. of New York, 287 F.3d 138, 145 (2d Cir. 2002). In deciding a motion to dismiss, the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Cargo Partner AG v. Albatrans, Inc., 352 F.3d 41, 44 (2d Cir. 2003); New v. Ashcroft, 293 F. Supp. 2d 256, 257 (E.D.N.Y. 2003). The Court's task "is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Levitt, 340 F.3d at 101 (internal quotation and citation omitted). The issue is not whether the plaintiff will ultimately prevail, but whether he or she is entitled to offer evidence to support the claims. New, 293 F. Supp. 2d at 257 (citing Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995)).
B. First Amendment Violation
Based upon the above, plaintiff's only remaining viable claims are those regarding the ablution ritual. As noted above, plaintiff exhausted his administrative remedies with respect to his claims that Laureano prevented plaintiff from performing ablution on October 1, 2001 and August 20, 2002. Defendants contend that the denial of the opportunity to perform ablution on two occasions, one year apart, cannot constitute a First Amendment violation. (Defs.' Mem. of Law in Supp. of Mot. to Dismiss at 14-16).
Courts in the Second Circuit are divided on the issue of whether missing one religious service constitutes a violation of an inmate's right to the free exercise of religion. Compare Wagnoon v. Gatson, Nos. 00-3722, 99-5872, 2001 WL 709276, at *8 (S.D.N.Y. June 25, 2001); Gill v. DeFrank, No. 98-7851, 2000 WL 897152, at *1 (S.D.N.Y. July 6, 2000); Boomer v. Irvin, 963 F. Supp. 227, 230 (W.D.N.Y. 1997);with Harris v. Lord, 957 F. Supp. 471, 475 (S.D.N.Y. 1997);Dingle v. Lowery, No. 88-2648, 1995 WL 302508, at *1 (E.D.N.Y. May 5, 1995). Moreover, the Second Circuit has stated that "[a]pplying the substantial burden test requires courts to distinguish important from unimportant religious beliefs, a task for which . . . courts are particularly ill-suited." Ford v. McGinnis, 352 F.3d 582, 593 (2d Cir. 2003); see also McEachin v. McGuinnis, 357 F.3d 197, 203 (2d Cir. 2004) (in which the Second Circuit declined to decide whether a plaintiff must demonstrate that the burden on his or her beliefs was "substantial" in order to state a free exercise claim).
A state prison regulation which burdens the free exercise of religion, is nevertheless valid if it is reasonably related to legitimate penal objectives. Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 2260-61, 96 L. Ed. 2d 64 (1987). Thus, even if defendants abridged plaintiff's free exercise rights, the refusal to provide him with access to the bathroom sink is constitutional if the decision was supported by some legitimate penal objective. Reasonableness is determined by a number of factors: (1) whether there is a "valid, rational connection" between the regulation and the legitimate, government interest offered to justify it; (2) whether the inmate had alternative means of exercising his or her First Amendment right; (3) the impact that accommodation of the asserted constitutional right would have on the correctional officers, other prisoners, and allocation of prison resources generally, and (4) whether obvious and less burdensome alternatives to the regulation exist. Id. at 89-91.
Since defendants did not address whether the denials were based upon legitimate penal concerns, and since the Court must draw all reasonable inferences in plaintiff's favor, it is premature to determine as a matter of law that plaintiff cannot establish any set of facts sufficient to support of his First Amendment claims. Therefore, defendants' motion to dismiss for failure to state a claim is denied at this time.
C. Qualified Immunity
Laureano further argues that he is protected from suit in his individual capacity by the doctrine of qualified immunity. See Ford v. Reynolds, 316 F.3d 351, 356 (2d Cir. 2003) ("[Q]ualified immunity protects . . . individual defendants sued in their individual capacity. . . ."). "The qualified immunity doctrine shields `government officials performing discretionary functions . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 65 (2d Cir. 1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)). However, since the Court must first determine whether a constitutional violation occurred prior to deciding whether qualified immunity exists, it is premature to address this issue. See Ford, 352 F.3d at 598; Stuto v. Fleishman, 164 F.3d 820, 825 (2d Cir. 1999).
D. Personal Involvement of Breslin
The personal involvement of a supervisory official in the alleged constitutional deprivation is a prerequisite to an award of damages under § 1983. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). A supervisor may be personally involved in a § 1983 violation where he or she: (1) participated directly in the alleged constitutional deprivation; (2) failed to remedy the wrong after being informed of the violation; (3) created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom; (4) was grossly negligent in supervising subordinates who committed the wrongful acts; or (5) exhibited deliberate indifference to others' rights by failing to act on information indicating that unconstitutional acts were occurring. Colon, 58 F.3d at 873; Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986).
In this case, the complaint alleges that "Breslin denied plaintiff's grievance without conducting a thorough investigation of the matter, nor did he counsel Officer Laureano about his discriminatory action towards plaintiff's religion belief and practices as a Muslim." (Compl. at 6). Breslin contends that merely affirming the denial of plaintiff's grievance is insufficient to establish personal involvement. Although some courts in this circuit have held that personal involvement is present where a supervisory official receives and acts on a prisoner's grievance, see, e.g., McKenna v. Wright, No. 01-6571, 2004 WL 102752, at *6 (S.D.N.Y. Jan. 21, 2004); White v. Mitchell, No. 99-8519, 2001 WL 64756, at *3 (E.D.N.Y. Jan. 18, 2001) ("[A]llegations that Breslin denied the grievance, and failed to take steps to provide for [plaintiff's] treatment are sufficient to plead Breslin's personal involvement in the violation."), other courts in this circuit have construed the second Colon factor as requiring more than mere affirmation of a grievance denial. See, e.g., Joyner v. Greiner, 195 F. Supp. 2d 500, 506 (S.D.N.Y. 2002) ("The fact that Superintendent Greiner affirmed the denial of plaintiff's grievance — which is all that is alleged against him — is insufficient to establish personal involvement. . . ."); Villante v. New York State Dep't of Corr. Servs., No. 96-1484, 2001 U.S. Dist. LEXIS 25208, at *17 (N.D.N.Y. Oct. 25, 2001), Report and Recommendation adopted at 2002 U.S. Dist. LEXIS 26279 (N.D.N.Y. Mar. 28, 2002). Since this Court finds that affirming the denial of a grievance is insufficient to establish personal involvement of a prison superintendent, plaintiff's First Amendment claims against Breslin are dismissed.
V. Conclusion
For the reasons set forth above, defendants' motion is GRANTED in part and DENIED in part. The parties are directed to contact Magistrate Judge Lois Bloom for further proceedings. IT IS SO ORDERED.