Opinion
00 Civ. 1691 (LTS) (JCF).
February 23, 2005
REPORT AND RECOMMENDATION
Jesse James Perkins brings this action pro se pursuant to 42 U.S.C. § 1983, alleging that Khee Tint Maw, a doctor at the Sing Sing Correctional Facility ("Sing Sing"), where Mr. Perkins was incarcerated, denied him adequate medical care. Specifically, he asserts that Dr. Maw refused to treat him for a period of four months and that the treatment the defendant ultimately provided was inadequate. In prior versions of his pleadings, the plaintiff also named the New York State Department of Correctional Services ("DOCS") and a corrections officer as defendants. Dr. Maw now moves to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to exhaust administrative remedies under the Prison Litigation Reform Act (the " PLRA"). For the reasons that follow, I recommend that his motion be denied. Background
It is necessary at the outset to clarify what claims are at issue and which defendants are being sued. In his first Amended Complaint, in addition to his allegations against Dr. Maw, the plaintiff asserted a claim against Corrections Officer Robert Obey, whom he accused of causing the injuries for which he sought medical treatment. The defendants moved to dismiss the claim against Dr. Maw for failure to comply with exhaustion requirements and on the ground that the plaintiff failed to state a claim of inadequate medical care under the Eighth Amendment. In a Report and Recommendation dated November 1, 2001 (the "RR"), I recommended that the exhaustion argument be rejected but that the claim against Dr. Maw be dismissed because the complaint failed to state that he possessed the requisite culpable state of mind.
The Honorable Laura T. Swain, U.S.D.J., adopted the RR in an Order dated February 10, 2004. Perkins v. Obey, No. 00 Civ. 1691, 2004 WL 238036 (S.D.N.Y. Feb. 10, 2004). However, based on allegations that Mr. Perkins made in his objections to the RR concerning Dr. Maw's state of mind, Judge Swain granted the plaintiff leave to file a further amended pleading. Specifically, she instructed that "[t]he Second Amended Complaint should include the allegations in the Amended Complaint and the factual allegations concerning Dr. Maw that were included in the Plaintiff's objection." Perkins, 2004 WL 238036, at *3. The plaintiff then submitted a Second Amended Complaint. But contrary to Judge Swain's instructions, he neglected to reassert the claim against the corrections officer, and only elaborated on his claim against Dr. Maw. Mr. Perkins concedes that he made a "mistake" and states that he is dropping his excessive force claim against the corrections officer. Thus, in this opinion I address only the claim against Dr. Maw for inadequate medical treatment.
In addition, although the plaintiff included DOCS as a defendant in his initial complaint, he failed to state a claim against it, and he omitted this defendant from both of his subsequent pleadings.
The facts giving rise to the plaintiff's claim against Dr. Maw are set forth in the RR. They are repeated only as necessary, since my analysis here deals principally with the defendants' argument that Mr. Perkins failed to comply with the PLRA's exhaustion requirement.
The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), provides that "[n]o 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." This limitation applies broadly, requiring that prisoners exhaust available remedies in "all inmate suits about prison life," including suits alleging deliberate indifference to a serious medical need. Porter v. Nussle, 534 U.S. 516, 532 (2002); see also Abney v. McGinnis, 380 F.3d 663 (2d Cir. 2004) (applying exhaustion requirement to deliberate indifference claim); Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004) (same).
Before filing a suit for deliberate indifference to medical needs under section 1983, an inmate in DOCS custody must exhaust a three-step administrative grievance process. See N.Y. Correction Law § 139; 7 N.Y.C.R.R. § 701.7; see also Flanagan v. Maly, No. 99 Civ. 12336, 2002 WL 122921, at *1 (S.D.N.Y. Jan. 29, 2002) ("New York permits inmates to file internal grievances as to virtually any issue affecting their confinement."). First, the inmate must submit a grievance which is investigated and reviewed by the Inmate Grievance Resolution Committee (the "IRGC"), a group comprised of other inmates and prison officials.See 7 N.Y.C.R.R. § 701.7(a); Hemphill v. New York, 380 F.3d 680, 682 (2d Cir. 2004). Next, "within four working days after receipt of the committee's written response to the grievance," he must appeal the IRGC's determination to the correction facility's superintendent. See 7 N.Y.C.R.R. § 701.7(b). Finally, "within four working days . . . of the superintendent's written response," the inmate must submit an appeal to the Central Office Review Committee ("CORC") for a final determination. See 7 N.Y.C.R.R. § 701.7(c).
Defendant Maw argues that the plaintiff did not exhaust his administrative remedies because he failed to appeal the IRGC's denial of his grievance. (Defendants' Memorandum of Law in Support of Their Motion to Dismiss the Second Amended Complaint ("Def. Memo.") at 6-11). In support of this allegation, the defendants have submitted the declaration of Thomas Eagen, who, in his capacity as custodian of the records maintained by CORC, states that he searched the CORC database for records of appeals filed by the plaintiff, but found none pertaining to the conduct underlying this case. (Declaration of Thomas G. Eagen dated July 26, 2004, attached to Defendants' Notice of Motion). In his response to the defendants' motion to dismiss, Mr. Perkins asserted that he appealed the denial of his grievance to the prison Superintendent and Mr. Eagen. (Plaintiff's Opposition to Defendants' Motion to Dismiss ("Pl. Opp. Memo.") at 5th unnumbered page), he argues essentially that any failure to complete the appeal process is attributable to DOCS employees. (Pl. Opp. Memo. at 5th and 6th unnumbered pages). According to the plaintiff, he was unable to submit his appeal himself because at that time he had been placed in keeplock, a form of "restricted confinement reserved for prisoners who present disciplinary or other problems[.]" Ford v. McGinnis, 352 F.3d 582, 585 (2d Cir. 2003). He alleges that he left his appeal "on the cell bars for the officer to drop in the mail box" and that if the appeal was not processed it must be because the officers failed to transmit it. (Pl. Opp. Memo. at 5th through 7th unnumbered pages). Discussion
As noted above, Dr. Maw has moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. A court considering a motion to dismiss must accept as true all factual allegations in the complaint and draw all inferences in favor of the plaintiff. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993); York v. Association of the Bar of the City of New York, 286 F.3d 122, 125 (2d Cir. 2002); Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). Accordingly, the complaint may not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted). These principles are even more strictly applied where the plaintiff alleges civil rights violations, Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001); Flaherty v. Lang, 199 F.3d 607, 612 (2d Cir. 1999), or where he is proceeding pro se. Haines v. Kerner, 404 U.S. 519, 520 (1972); McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999).
In considering a motion to dismiss under Rule 12(b)(6), a court must generally limit itself to the facts stated in the complaint, which is deemed to include documents attached to the complaint and documents incorporated by reference. Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999). However, it may also consider a document not incorporated by reference, "where the complaint `relies heavily on its terms and effect,' which renders [it] `integral' to the complaint." Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002) (quotingInternational Audiotext Network v. American Telephone and Telegraph Co., 62 F.3d 69, 72 (2d Cir. 1995)). If a motion to dismiss includes material "outside the pleadings" which does not meet these criteria, the court must either exclude the material or convert the motion to dismiss to one for summary judgment. Fed.R.Civ.P. 12(b); Chambers, 282 F.3d at 152.
In this case, both parties have presented materials extrinsic to the complaint; the defendant has submitted Mr. Eagen's declaration and the plaintiff has asserted facts regarding his attempts to exhaust. The defendant argues that the Mr. Eagen's declaration should nevertheless be considered on a motion to dismiss because as a general matter, "the exhaustion issue is an integral part of [a] prisoner's claim." (Def. Memo. at 5-6). Whether this is true is open to debate. The Second Circuit has made clear "that exhaustion under the PLRA is not jurisdictional, and that it is an affirmative defense[.]" Ziemba, 366 F.3d at 163 (citations omitted). Nevertheless, "courts routinely consider extrinsic materials on a motion to dismiss for nonexhaustion, without first requiring conversion pursuant to Rule 12(b) or 12(c)." McCoy v. Goord, 255 F. Supp. 2d 233, 250 (S.D.N.Y. 2003) (citing cases considering such materials in Rule 12(b)(6) context).
In this case, it is ultimately unnecessary to decide whether to convert the motion to one for summary judgment; dismissal is inappropriate under either standard because there are factual disputes relating to Mr. Perkins' attempts to exhaust. The plaintiff has asserted that he appealed his grievance, while the defendants have submitted Mr. Eagen's declaration which purports to establish that an appeal was never received or reviewed, based on the fact that no computer record of such appeal exists. Yet, without more information, it is plausible that an appeal was received, but that this fact was never recorded. The defendant has presented no evidence to rebut this possibility, such as a statement as to whether a search beyond the computer records was ever conducted. See Thomas v. New York State Department of Correctional Services, No. 00 Civ. 7163, 2002 WL 31164546, *3 (S.D.N.Y. Sept. 30, 2002) (denying motion for summary judgment where declaration was "totally conclusory" in that "[i]t [did] not even describe the search that was done, whether any search was conducted beyond the program's computerized records, or describe all the places where records of [the inmate's] grievance could be found").
Moreover, even accepting as true the defendants' contention that Mr. Perkins' appeal was never received, there are other factual issues on which the record must be developed in light of the Second Circuit's recent decisions concerning the PLRA's exhaustion requirement. In Hemphill, the Circuit held that "where a prisoner plaintiff plausibly seeks to counter defendants' contention that the prisoner has failed to exhaust available administrative remedies," a three-part test must be applied. 380 F.3d at 686. First, "[d]epending on the inmate's explanation for the alleged failure to exhaust," the court must determine whether administrative remedies were "available" to the prisoner. Id. (citing Abney, 380 F.3d at 663). Second, the court must ask whether the defendants "forfeited the affirmative defense of exhaustion by failing to raise it," or are estopped from raising the defense by their own actions inhibiting the plaintiff's access to available administrative remedies. Id. (citing Johnson v. Testman, 380 F.3d 691 (2d Cir. 2004);Ziemba, 366 F.3d at 163). And, third, where administrative remedies were available and the defendants neither waived the non-exhaustion defense nor are estopped from asserting it, "the court should consider whether `special circumstances' have been plausibly alleged that `justify the prisoner's failure to comply with administrative procedural requirements.'" Id. (citingGiano v. Goord, 380 F.3d 670 (2d Cir. 2004); Rodriguez v. Westchester County Jail Correctional Department, 372 F.3d 485, 487 (2d Cir. 2004)). Although the defendant in this case has not waived his nonexhaustion defense, and the plaintiff has alleged nothing that suggests special circumstances, the record must be developed with respect to whether corrections officers in fact failed to deliver Mr. Perkins' appeal. Such conduct would have rendered DOCS grievance remedies unavailable, or, alternatively, would arguably estop Dr. Maw from asserting exhaustion as a defense.
"Special circumstances" have been construed to include situations where the plaintiff reasonably interprets DOCS grievance regulations to allow for a means of exhaustion not specifically prescribed in the regulations, for example, writing a letter directly to the prison superintendent. See Hemphill, 380 F.3d at 689; Gianno, 380 F.3d at 676.
Thus, because the record is unclear as to Mr. Perkins' exhaustion of his administrative remedies, the defendant's motion to dismiss should be denied. Conclusion
Judge Swain may decide that it is efficient to refer the case to me in order to hold a hearing on the issue of exhaustion so that it may be resolved before the parties embark on full discovery.
For the reasons set forth above, I recommend that the defendant's motion to dismiss be denied. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable Laura T. Swain, Room 1205, 40 Foley Square, New York, New York 10007, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.