Opinion
01 Civ. 5179 (MBM).
June 25, 2003.
Feliberto Rivera, Jr., Great Meadow Correctional Facility, Comstock, NY, Plaintiff pro se.
Eliot Spitzer, Steven N. Schulman, Attorneys for Defendants.
OPINION AND ORDER
Plaintiff Feliberto Rivera, Jr., an inmate at Great Meadow Correctional Facility, filed this action pro se against numerous defendants, claiming that they retaliated against him for filing a lawsuit seeking damages arising from an allegedly slipshod medical procedure. Defendants include various officials at the New York State Department of Correctional Services ("DOCS"), and persons employed at the Green Haven Correctional Facility ("Green Haven"), the Eastern Correctional Facility ("Eastern"), the Cayuga Correctional Facility ("Cayuga"), and the Great Meadow Correctional Facility ("Great Meadow"). Rivera sues under 42 U.S.C. § 1983, 1985, 1986 and 1988, seeking damages as well as declaratory and injunctive relief. Defendants move to dismiss the complaint. For the reasons stated below, Rivera's complaint is dismissed without prejudice.
The following names are spelled as they are in Rivera's complaint. Rivera names as defendants: George E. Pataki, Governor and Chief Officer of DOCS; Donald S. Selsky, Director of Special Housing Unit for DOCS; Brian Malone, Inspector General of DOCS; Christopher P. Artuz, Superintendent of Green Haven; Dennis Bliden, First Deputy Superintendent of Green Haven; George S. Schnider, Deputy Superintendent of Security at Green Haven; Gayle Haponik, Deputy Superintendent of Administrative Services at Green Haven; McMoy, Deputy Superintendent of Programs at Green Haven; Meeuwisse, Hearing Officer at Green Haven; Correctional Lieutenants Gwen S. Schedier, Thomas K. Quackenbush, Michael N. Nagy, and T. Gotsch; Correctional Sergeants William F. Keyser, Alexander C. Miller, Kenneth G. Hafford, Coleman S. Wilson, Ward, and Thomas P. McCabe; Corrections Officers Jerry W. Surber, Jr., Daniel F. Martucello, Chris M. Martucello, Christopher W. Carlton, Schihl, Speed, Miller, and W. Eaton; Tammy Haights, Investigator of DOCS Inspector General's Office; David Miller, Superintendent of Eastern; Jordan A. Rynn, Superintendent of Cayuga SHU-200 Box; George B. Duncan, Superintendent of Great Meadow; Phillps, Deputy Superintendent of Security at Great Meadow; Dr. Paolano, Medical Director at Great Meadow; Nedsmith, Physician Assistant at Great Meadow; and John/Jane Doe 1-7, in their personal and individual capacity.
I.
Rivera's complaint was received by the Pro Se Office of this court on May 18, 2001 and filed in the Clerk's Office on June 11, 2001. Rivera's claims arise out of incidents in November 1999 through February 2000, and in April and May 2001. In particular, Rivera says that corrections officers and other DOCS employees at Green Haven retaliated against him after he filed a lawsuit against 38 Green Haven employees in March 1999. Rivera's March 1999 lawsuit, which was assigned to Judge Chin in this district, alleged claims arising from a medical procedure performed at Green Haven in 1997. Rivera claimed in that lawsuit that prison medical employees botched surgery on his jaw and refused him the treatment he needed for severe pain. He alleged also that corrections officers retaliated and used excessive force against him because he complained about his medical care.See Rivera v. Goord, No. 99 Civ. 1683, 2003 WL 1700518 (S.D.N.Y. Mar. 28, 2003).
Rivera's complaint in the present case describes incidents starting in November 1999, when he was incarcerated at Green Haven. Rivera alleges, among other things, that Green Haven employees refused to allow him to mail legal documents, issued false misbehavior reports against him, and prevented him from receiving a package of items he had ordered, causing him to lose $383. (Compl. at 9-11) Rivera alleges that on November 16, 1999 he was assaulted in one of the shower areas of the prison and officers destroyed items in his cell. (Id. at 12-14) Rivera claims that a corrections officer said, among other things, "I don't care who you are suing, we can still do as we please." (Id. at 14) Rivera alleges that when he went to a hearing regarding a false misbehavior report, the hearing officer told him that he could not return Rivera's personal property to him because the officers had illegally destroyed it. Rivera says also the hearing officer "informed plaintiff that he needs to stop writing because the administration is allowing him to be harassed out of retaliation due to him suing 38 DOCS employees who work at [Green Haven]." (Id. at 15) Rivera states that in November and December 1999 employees harassed, threatened, or humiliated him. (Id. at 15-17) After complaining to a corrections officer about his treatment, Rivera says the employee said, "I don't care about the constitution, nor any inmate rights, because you all have no rights!" (Id. at 17) Rivera says that in December 1999 officers refused to close the block door when they were strip searching inmates, and inmates had to remove their clothes in the freezing cold. (Id. at 16) Rivera claims also that on January 4, 2000, he was forced to strip to his underwear and several guards surrounded him and said: "We have been waiting for this moment." (Id. at 18) Rivera says that one guard fondled "his private parts" and the other guards grabbed his ankles, twisting them, and causing him severe pain because he had previously injured his ankle. (Id.) Immediately after this incident, Rivera says that he told two sergeants what had happened. (Id. at 18-20)
Rivera's complaint is not paginated, but defendants attach a paginated copy of the complaint to their motion to dismiss. Citations in this opinion refer to those page numbers.
Rivera alleges that he was transferred to Eastern for retaliatory reasons on January 5, 2000. (Id. at 21) Rivera says that a series of three false misbehavior reports were generated to justify the transfer. (Id. at 21-24) He claims that Eastern did not stock the medication he needed for the pain in his jaw and that he was unable to sleep or eat for two days because of the pain. (Id. at 21) On January 7, 2000, Rivera was transferred to Cayuga. (Id.) He says that he informed medical staff at Cayuga of his condition, but was refused medication and his dental mouth-guard for two weeks, causing him severe pain. Rivera claims also that officials at Green Haven destroyed much of his personal property when he was transferred from the facility. (Id.)
Rivera complains also about his treatment by medical employees in April and May 2001 at Great Meadow ("Great Meadow claims"). Rivera alleges that after he arrived at Great Meadow on April 30, 2001, the nurse at the facility's clinic took away various medications he had brought with him, and refused to give him the medication that he needed. (Id. at 26) Rivera claims that over the course of the next few days he repeatedly complained to nurses about his severe pain, but he still was not given his medication. (Id. at 27-31) As of May 11, 2001, he claimed his requests for medical treatment were still being ignored. (Id. at 31)
Rivera seeks declaratory relief that the actions of various defendants violated his rights under state and federal law. (Id. at 32-33) He seeks an injunction against defendants which, among other things, (i) orders treatment prescribed to him by specialists, (ii) expunges certain disciplinary convictions, (iii) prohibits further retaliation, stealing or destroying of his property, and (iv) transfers him to a facility in lower New York State. (Id. at 33-34) Rivera also seeks $500,000 in compensatory damages, $300,000 in punitive damages, and $200,000 in damages for emotional stress and mental anguish. (Id. at 35)
On October 29, 2001, Rivera filed a motion to supplement his pleadings under Rule 15(d). Rivera says in these pleadings that his inadequate medical treatment at Great Meadow persisted at least until May 19, 2001. I will not consider this motion to supplement the pleadings, as the complaint is being dismissed without prejudice. Rivera can include these claims in his new complaint.
On December 26, 2001, defendants moved to dismiss the complaint on the grounds that several of Rivera's claims of injury did not rise to the level of constitutional violations, that the complaint failed to allege personal involvement by several defendants in any unconstitutional action, and that Rivera failed to exhaust his administrative remedies, as required by the Prison Litigation Reform Act ("PLRA").
Regarding exhaustion, defendants argue that because Rivera filed his complaint before exhausting his claims of inadequate medical treatment at Great Meadow, these claims must be dismissed under Neal v. Goord, 267 F.3d 116, 121-23 (2d Cir. 2001). (Defs.' Mem. at 35) The Second Circuit held in Neal that under the exhaustion requirement of the PLRA, 42 U.S.C. § 1997e(a) (2000), "exhausting administrative remedies after a complaint is filed will not save a case from dismissal." Neal, 267 F.3d at 121. Under Neal, a prisoner must proceed through all levels of administrative review prior to filing a claim in federal court. Defendants attach to their motion to dismiss an affidavit from Thomas G. Eagen, director of DOCS' Inmate Grievance Program, which states that an attached computer printout lists all of the appeals filed by Rivera as of December 18, 2001, with the Central Office Review Committee ("CORC"), the group that makes final administrative decisions under the Inmate Grievance Program. (Eagen Aff. Ex. A) Defendants attach also copies of several complaints filed and appealed by Rivera. (Eagen Aff. Exs. B-F)
Rivera's response to defendants' motion to dismiss, dated March 26, 2002, cites language from the Second Circuit's decision in Nussle v. Willette, 224 F.3d 95 (2d Cir. 2000), and argues that he was not required to exhaust his claims. (Pl.'s Mem. at 13) Rivera argues also that he should not be bound by Neal because it was decided after he filed his complaint, that exhaustion was not required because he was seeking urgent medical relief, and that in any event one of his claims should be deemed exhausted because he received a favorable response from the Inmate Grievance Resolution Committee. (Pl.'s Mem. at 14-15) Rivera attaches to his response various papers including letters he sent to various DOCS employees, grievance complaints, and administrative decisions. On April 9, 2002, Rivera filed additional documents.
Willette held that the "exhaustion of administrative remedies is not required for [prisoner] claims of assault or excessive force brought under § 1983." Willette, 224 F.3d at 106. The Supreme Court reversed in Porter v. Nussle, 534 U.S. 516 (2002), holding that the PLRA requires exhaustion of administrative remedies for all prisoner suits "whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Id. at 532. The Supreme Court decided Porter on February 26, 2002 — one month before Rivera filed his memorandum in opposition to defendants' motion to dismiss. Courts in this Circuit are in agreement that Porter applies retroactively, even though the Second Circuit had held previously that certain types of claims need not be exhausted. See, e.g., Arnold v. Goetz, 245 F. Supp.2d 527, 535 n. 2 (S.D.N.Y. 2003); Hemphill v. New York, 198 F. Supp.2d 546, 549-50 (S.D.N.Y. 2002).
Defendants' reply memorandum, filed on June 13, 2002, argues that Porter requires Rivera to exhaust all his claims, and Rivera has failed to do so. In addition, defendants argue that even if some of Rivera's claims are exhausted, the entire action must be dismissed if any one of Rivera's claims is unexhausted. (Defs.' Reply Mem. at 10 n. 4)
II.
The exhaustion requirement of the PLRA is set forth in 42 U.S.C. § 1997e(a), which provides:
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 have been exhausted.42 U.S.C. § 1997e(a) (2000). Section 1997e(a) "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, 534 U.S. at 532.
Inmates in New York state custody may file grievances through the DOCS Inmate Grievance Program ("IGP"), which consists of three levels. First, the inmate is to file a complaint with the Inmate Grievance Resolution Committee ("IGRC"). See N.Y. Comp. Codes R. Regs. tit. 7 § 701.7(a). Second, after receiving a response from the IGRC, the inmate may appeal to the superintendent. Id. § 701.7(b). Third, after receiving a response from the superintendent, an inmate may file an appeal of the superintendent's decision to the Central Office Review Committee ("CORC"). Id. § 701.7(c); see also Cruz v.Jordan, 80 F. Supp.2d 109, 117-18 (S.D.N.Y. 1999) (discussing procedure in detail).
There is also an "expedited" grievance procedure for addressing harassment by DOCS staff, defined as "[e]mployee misconduct meant to annoy, intimidate, or harm an inmate." N.Y. Comp. Codes R. Regs. tit. 7, § 701.11(a). Under the expedited procedure, the prisoner is first directed to report the offensive conduct to the employee's immediate supervisor. Id. § 701.11(b)(1). The inmate's allegations must then be given a grievance number and recorded in sequence. Id. § 701.11(b)(2). All documents submitted with the allegation must be forwarded to the superintendent by close of business that day. Id. The superintendent must then "promptly determine whether the grievance, if true, would represent a bona fide case of harassment." Id. § 701.11(b)(3). If not, the grievance is submitted to the IGRC for resolution in accord with the procedure outlined in § 701.7. If so, the superintendent may either initiate an in-house investigation or request an investigation by the Inspector General's office or the State Police. Id. § 701.11(b)(4)(i)(ii). The superintendent must render a decision and transmit that decision to the grievant, and other parties, within 12 working days. Id. § 701.11(b)(5). If the grievant wishes to appeal the decision, he must file a notice of decision to appeal with the inmate IGP clerk within four working days of receipt of the superintendent's decision.Id. § 701.11(b)(7); see also Dimick v. Baruffo, No. 02 Civ. 2151, 2003 WL 660826, at *3 (S.D.N.Y. Feb. 28, 2003) (describing the expedited procedure); Cruz v. Jordan, 80 F. Supp.2d 109, 118 (S.D.N.Y. 1999) (same).
The Second Circuit held in Neal that § 1997e(a) requires a prisoner filing a § 1983 suit to exhaust a claim prior to filing suit. Neal, 267 F.3d at 121; see also Jackson v. District of Columbia, 254 F.3d 262, 268-69 (D.C. Cir. 2001) (exhaustion must be complete before suit filed); Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999) (same); Perez v. Wis. Dep't of Corr., 182 F.3d 532, 535 (7th Cir. 1999) (same). But see Williams v. Norris, 176 F.3d 1089, 1090 (8th Cir. 1999) ("We conclude the district court improperly granted defendants' motion to dismiss, as the record demonstrates that Williams's grievance had been denied by the Warden and the Assistant Director at the time the court ruled.").
Where a party is proceeding pro se, as Rivera is, the court has an obligation to "read the pleadings . . . liberally and interpret them to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 279 (2d Cir. 1999) (citation and internal quotation marks omitted).
III.
Defendants move to dismiss under Rule 12(b)(1) and 12(b)(6), for failure to state a claim and failure to exhaust administrative remedies. Defendants attach documents to their motion that they allege show Rivera's complaint contains unexhausted claims.
If exhaustion were a prerequisite for federal subject matter jurisdiction, a Rule 12(b)(1) motion would be appropriate, and this court could consider evidence outside the pleadings to determine whether jurisdiction had been established. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). However, in Hayes v. N.Y.S. D.O.C. Officers, No. 97 Civ. 7383, 1998 WL 901730, at *7 n. 4 (S.D.N.Y. Dec. 28, 1998), this court held that exhaustion under the PLRA is not a jurisdictional requirement. See also Davis v. New York, 316 F.3d 93, 101 (2d Cir. 2002) (nonexhaustion may be waived);Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir. 1999) (failure to exhaust is an affirmative defense); McCoy v.Goord, No. 01 Civ. 3133, 2003 WL 1479232, at *8 (S.D.N.Y. Mar. 25, 2003) (collecting cases holding that exhaustion is not a prerequisite to federal subject matter jurisdiction, but noting that some courts in this Circuit have treated exhaustion as a jurisdictional requirement). Because exhaustion is not a prerequisite to federal subject matter jurisdiction, a Rule 12(b)(1) motion is inappropriate.
Although the Second Circuit has not explicitly addressed the issue, other courts of appeals, both before and afterPorter, have concluded that the PLRA's exhaustion requirement is not jurisdictional. See Ali v. District of Columbia, 278 F.3d 1, 5-6 (D.C. Cir. 2002); Casanova v. Dubois, 289 F.3d 142, 147 (1st Cir. 2002); Foulk v. Charrier, 262 F.3d 687, 697 (8th Cir. 2001); Wright v. Hollingsworth, 260 F.3d 357, 358 n. 2 (5th Cir. 2001); Curry v. Scott, 249 F.3d 493, 501 (6th Cir. 2001); Nyhuis v. Reno, 204 F.3d 65, 69 n. 4 (3d Cir. 2000); Perez v. Wisconsin Dep't of Corr., 182 F.3d 532, 535-36 (7th Cir. 1999); Rumbles v. Hill, 182 F.3d 1064, 1067 (9th Cir. 1999).
It appears that if a plaintiff concedes lack of exhaustion in the complaint, or nonexhaustion is otherwise apparent from the complaint and attached documents, a court may decide the exhaustion issue in a Rule 12(b)(6) motion. See Pani v.Empire Blue Cross Blue Shield, 152 F.3d 67, 74 (2d Cir. 1998) ("An affirmative defense may be raised by a pre-answer motion to dismiss under Rule 12(b)(6), without resort to summary judgment procedure, if the defense appears on the face of the complaint."); see also McCoy, 2003 WL 1479232, at *10 ("If failure to exhaust is apparent from the face of the complaint, . . . a Rule 12(b)(6) motion is the proper vehicle.").
However, whether Rivera exhausted his claims is not apparent from the face of his complaint or documents attached to his complaint. 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 shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(b); see also Arnold v. Goetz, 245 F. Supp.2d 527, 540 (S.D.N.Y. 2003) (noting that if a court looks at materials beyond the pleadings, the motion to dismiss on exhaustion grounds should be converted to a motion for summary judgment); Sulton v. Greiner, No. 00 Civ. 0727, 2000 WL 1809284, at *1 (S.D.N.Y. Dec. 11, 2000) (same); Steele v.N.Y. State Dep't of Corr. Servs., No. 99 Civ. 6111, 2000 WL 777931, at *1 (S.D.N.Y. Jun. 19, 2000) (same). Before a district court converts a motion to dismiss to a motion for summary judgment, the court must be satisfied that the parties are not taken by surprise or deprived of a reasonable opportunity to contest facts averred outside the pleadings. See Krijn v.Pogue Simone Real Estate Co., 896 F.2d 687, 689 (2d Cir. 1990).
Here defendants' motion to dismiss will be treated as a motion for summary judgment on one narrow issue: whether Rivera exhausted his Great Meadow claims prior to filing this lawsuit. Rivera had notice and an opportunity to respond regarding whether these claims were exhausted. In their motion to dismiss, defendants argued that these claims must be dismissed underNeal, because they were not exhausted until after Rivera filed his complaint. (Defs.' Mem. at 35) Defendants attached documents showing that CORC did not review these claims until July 2001, after Rivera's complaint was filed. In response Rivera made several arguments as to why Neal did not mandate dismissal of his claims, and he attached copies of the CORC decisions from July 2001.
Rivera filed grievances at Great Meadow on May 8, 21, and 23, 2001, complaining that he was being denied adequate medical treatment. (Eagan Aff., Exs. C, D, E) The Great Meadow Superintendent issued decisions on these grievances on June 11, 13, and 18, 2001. (Id.) The CORC issued decisions on Rivera's first two claims on July 11, 2001, and responded to Rivera's third claim on July 19, 2001. (Id.).
Thus, there is no dispute that CORC decided these claims after Rivera filed his complaint. Rivera has had an opportunity to argue that he should not be bound by Neal, and to submit relevant documents. See Kennedy v. Empire Blue Cross and Blue Shield, 989 F.2d 588, 592 (2d Cir. 1993) (district court's conversion was proper when plaintiffs were on notice that dismissal was being sought on exhaustion grounds and plaintiffs had supplemented opposition papers with exhibits to show exhaustion). In addition, whether Rivera's Great Meadow claims should be dismissed for lack of exhaustion is a discrete and dispositive issue. See AdiPar Ltd. v. PLD Int'l Corp., No. 01 Civ. 0765, 2002 WL 31740622, at *4 (S.D.N.Y. Dec. 6, 2002) ("[E]ven when the parties have adequate notice, a Rule 12(b)(6) motion may be converted into a Rule 56 motion only if the issues to be resolved on summary judgment are `discrete and dispositive.'"); see also 2 James Wm. Moore et al., Moore's Federal Practice ¶ 12.34[3][a] (3d ed. 1999).
It appears that Rivera's Great Meadow claims were unexhausted at the time he filed his complaint, and should be dismissed without prejudice. Rivera argues in his memorandum in opposition to defendants' motion to dismiss that claims of excessive force or claims alleging retaliatory conduct need not be exhausted. (Pl.'s Mem. at 13) However, as mentioned above, Porter v.Nussle, 534 U.S. 516 (2002), held that such claims must be exhausted, and Porter applies even to cases filed before it was decided, including this one. Rivera argues also that Neal was decided after his complaint was filed, and thus he should not be bound by it. (Pl.'s Mem. at 15) However, in Neal, the Second Circuit applied its holding retroactively — the plaintiff had exhausted his claims after filing his complaint, and the Court affirmed the district court's dismissal without prejudice of the claims. Neal, 267 F.3d at 123; see also Rivera, 2003 WL 1700518, at *10; Long v. Lafko, No. 02 Civ. 1705, 2003 WL 1739007, at *3 (S.D.N.Y. Apr. 1, 2003).
In addition, Rivera argues that the exhaustion requirement should be excused because he required "immediate judicial intervention" due to his severe medical condition. (Pl.'s Mem. at 14-15) In Marvin v. Goord, 255 F.3d 40 (2d Cir. 2001), the Second Circuit remanded to the district court for a determination whether a prisoner was required to exhaust certain claims, and directed, among other things, that the district court determine whether:
in the context of Marvin's request for preliminary injunctive relief, exhaustion under the PLRA is required when the remedy sought, i.e., urgent medical relief, is available in the prison administrative proceedings but, because of exigencies of the situation, the remedy may be ineffective, see, e.g., Howell v. I.N.S., 72 F.3d 288, 291 (2d Cir. 1995) (noting that, under general principles of exhaustion, exhaustion may not be required where, inter alia, the available remedy provides no genuine opportunity for relief or irreparable injury may occur without immediate judicial relief); but see Booth, 121 S.Ct. at 1825 n. 6 (stating that "we will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise").Marvin, 255 F.3d at 43 (footnote omitted). Although Marvin suggested that there might be an exception to the exhaustion requirement when a plaintiff seeks urgent medical relief and administrative remedies are ineffective, there appear to be no cases relying on Marvin to find an "urgent medical relief" exception to the PLRA's exhaustion requirement, and it is difficult to square Booth v. Churner, 532 U.S. 731, 739 (2001) and Porter with the existence of such an exception. The Court said in Porter that the current exhaustion provision, § 1997e(a), "differs markedly" from its predecessor, a provision enacted in 1980. The Court said:
Once within the discretion of the district court, exhaustion in cases covered by § 1997e(a) is now mandatory. See Booth v. Churner, 532 U.S. 731, 739 (2001). All "available" remedies must now be exhausted; those remedies need not meet federal standards, nor must they be "plain, speedy, and effective." See ibid.; see also id., at 740, n. 5.Porter, 534 U.S. at 524. The Court described the new provision as eliminating "judicial discretion to dispense with exhaustion." Id. at 529; see also Booth, 532 U.S. at 741 n. 6 ("[W]e stress the point that we will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise."). Rivera is not excused from the requirement that he exhaust his claims.
The Second Circuit has said that "Booth does allow that exhaustion may not be required `where the relevant administrative procedure lacks authority to provide any relief or to take any action whatsoever in response to a complaint.'"Beharry v. Ashcroft, 329 F.3d 51, 58 (2d Cir. 2003) (quotingBooth, 532 U.S. at 736). This is not such an instance. New York prison regulations have procedures for handling emergency grievances. See N.Y. Comp. Codes R. Regs. tit. 7, § 701.9.
In Jackson v. District of Columbia, 254 F.3d 262 (D.C. Cir. 2001), decided shortly after Booth, the D.C. Circuit declined to find an "irreparable injury exception" to the PLRA's exhaustion requirement, instead holding that a district court has equitable power to "issue injunctions to prevent irreparable injury pending exhaustion of administrative remedies," and the PLRA did not foreclose the exercise of such power. Id. at 268. Assuming I do possess such equitable power under Second Circuit law, I see no basis to exercise it here.
Finally, Rivera argues that he filed a grievance about his medical treatment at Great Meadow, and because this grievance was decided in his favor by the IGRC, there was no need to appeal it further. Rivera says that "[a]t least one court has held that if a prisoner wins his grievance at an earlier stage, but prison officials fail to carry out the decision, the prisoner has exhausted since it makes no sense to appeal if won." (Pl.'s Mem. at 14)
Rivera may be referring to Kaplan v. New York State Department of Correctional Services, No. 99 Civ. 5856, 2000 WL 959728, at *3 (S.D.N.Y. Jul. 10, 2000). In that case, the inmate's grievance was resolved by an agreement that a rabbi would "call out" the inmate to attend religious services. Id. at *2. The IGRC recommended that the agreement be monitored and complied with and the superintendent concurred in the recommendation. Despite the agreement, the inmate alleged that he continued to be denied access to religious services, and he filed a complaint in federal court. Judge Koeltl noted that section 701.7(b)(7) of title 7 of the Official Compilation of Codes, Rules and Regulations of the State of New York, provides that "[the Inmate Grievance Program] supervisor and/or the superintendent must obtain verification of compliance with grievance decisions favorable to the inmate." Kaplan, 2000 WL 959728, at *3 n. 4. This section, according to the Court, "imposes a duty on prison officials" and "does not provide the complaining inmate with further procedural recourse." Id. "Once an inmate has obtained a favorable ruling, the inmate has exhausted the available administrative remedies." Id. "While the defendant is required to exhaust his administrative remedies, nothing in the PLRA requires that he do so twice."Id. at *3.
In his opposition memorandum, Rivera refers to the IGRC decision in GM 31,686-01, a grievance he filed on May 8, 2001 requesting that the "policy of taking incoming inmates medication away, despite them having chronic known medical condition[s] be stopped." (Pl.'s Mem. at 14 Ex. D) On May 26, 2001, the IGRC recommended that this grievance be granted. (Pl.'s Mem. Ex. D) Rivera argues that because he received a favorable response from the IGRC, the claim was exhausted.
However, this case differs from Kaplan. In the present case, the Pro Se Office received Rivera's complaint before he received a decision from the IGRC, whereas in Kaplan the superintendent had already agreed with the IGRC's recommendation before the inmate filed his complaint. Unlike the plaintiff inKaplan, Rivera does not allege that prison officials failed to comply with a decision made by the Inmate Grievance Program. The IGRC decision in Rivera's favor on May 26, 2001 was a recommendation to the Great Meadow Superintendent, and the decision of the Superintendent did not grant Rivera all the relief that he sought. On June 11, 2001, the Great Meadow Superintendent said that Rivera's request would be granted "to the extent that, according to an investigation conducted by Medical Supervisory Staff, Grievant has been issued partial medications and a follow up appointment [is] scheduled with a facility Doctor to evaluate Grievant's medical necessity for the remaining prescriptions." (Pl.'s Mem. Ex. D; Eagen Aff. Ex. C) Rivera appealed this decision on June 13, 2001, stating: "This cruel and unusual punishment policy of taking incoming inmates medication away has not been stopped, nor [has] anything been put in writing to [ensure] that it's being stopped." (Id.) Thus, it "made sense" for Rivera to appeal the Superintendent's decision, and he did indeed appeal it. CORC did not render its decision on this grievance until July 11, 2001, well after Rivera's complaint was received and filed. GM 31,686-01 was not exhausted until CORC rendered its decision.
Rivera's complaint is dated May 11, 2001, and it was received by the Pro Se Office on May 18, 2001 — before the IGRC decision on May 26, 2001.
There is some difference in opinion as to which date is the relevant date under Neal — the date the complaint is received by the Pro Se Office, or the date it is filed by the Clerk. Compare Rodney v. Goord, No. 00 Civ. 3724, 2003 WL 21108353, at *5 ("[T]he date stamp from the Pro Se Office acts as the date a complaint is `deemed' filed."), with Dimick v.Baruffo, No. 02 Civ. 2151, 2003 WL 660826, at *4 n. 4 (S.D.N.Y. Feb. 28, 2003) ("In this circuit, the date on which a complaint is filed with the Pro Se Office has never been held relevant in determining whether a plaintiff has exhausted his administrative remedies prior to bringing suit."). I need not resolve this issue because even if Rivera had until June 11, 2001 to exhaust his Great Meadow claims, the claims must be dismissed under Neal because the CORC — to which Rivera decided to appeal his grievances — did not render its decisions until a month after that date.
Rivera filed two other grievances relating to his medical treatment at Great Meadow in May 2001. He appealed the decisions of the Superintendent on both claims to the CORC, which issued decisions on July 11, 2001 and July 18, 2001. Thus, all three of Rivera's Great Meadow grievances were unexhausted at the time Rivera filed this lawsuit. The claims in Rivera's complaint relating to his medical treatment at Great Meadow must be dismissed under Neal.
Rivera filed GM 31,728-01 on May 21, 2001. In that grievance, Rivera requested that a formal and full investigation be made of the prison's medical department, that several employees be removed from service, and that the course of treatment prescribed by his specialist be followed. The Superintendent denied the grievance in part on June 13, 2001, Rivera appealed, and the CORC affirmed on July 11, 2001. Rivera filed GM 31,736-01 on May 23, 2001, seeking relief similar to the relief he requested in GM 31,728-01. The Superintendent denied the grievance in part on June 18, 2001, Rivera appealed, and the CORC affirmed on July 18, 2001.
Because Rivera's Great Meadow claims must be dismissed, I will dismiss Rivera's entire complaint without prejudice. District courts in this Circuit have taken different approaches when faced with an inmate complaint containing both unexhausted and exhausted claims. See Ortiz v. McBride, 323 F.3d 191, 195 (2d Cir. 2003) (noting that "[d]istrict courts in this circuit are currently split on the question of whether the PLRA requires such `total exhaustion'"). Compare Vidal v. Gorr, No. 02 Civ. 5554, 2003 WL 43354 (S.D.N.Y. Jan. 6, 2003) (holding that entire complaint must be dismissed, without prejudice, because some claims unexhausted), and Saunders v. Goord, No. 98 Civ. 8501, 2002 WL 1751341 (S.D.N.Y. Jul. 29, 2002) (dismissing inmate complaint containing some unexhausted claims, citing "the plain language of § 1997e(a)"), with Dimick v. Baruffo, No. 02 Civ. 2151, 2003 WL 660826, at *5 (S.D.N.Y. Feb. 28, 2003) (noting that "Congress did not intend the PLRA to be a minefield" and where the court "can easily sever unexhausted claims, leaving a possibly valid suit, it should do so"), and Rivera, 2003 WL 1700518, at *13 (stating that one exhausted claim "can easily be severed" and will be considered, but declining to consider the remaining exhausted claim "both because the issues have not been briefed and the claim is related to other, unexhausted claims that are dismissed without prejudice").
It appears that at least one of Rivera's claims was exhausted at the time he filed his complaint — his claim alleging inadequate medical treatment at Cayuga. Defendants' records show that Rivera filed this claim on January 18, 2000, and the CORC issued a decision on the claim on March 1, 2000. (Eagen Aff. Ex. A B) However, it is Rivera and not this court who must decide what is to be the content of Rivera's complaint. Therefore, the better course is to dismiss this claim along with the others, and Rivera will have an opportunity to plead it again if he chooses to do so. Moreover, as this claim is not pleaded clearly in the complaint, Rivera will benefit from having another chance to assert it.
I note that it appears, at least from defendants' records, that Rivera did not exhaust certain claims regarding retaliation at Green Haven from November 1999 to January 2000. Defendants' list shows that the last grievance Rivera filed at Green Haven that was reviewed by the CORC was filed on July 31, 1999. (Eagen Aff. Ex. A) Rivera did write several letters to senior DOCS officials in November 1999 through January 2000. However, "[c]ourts have repeatedly held that complaint letters to the DOCS Commissioner or the facility Superintendent do not satisfy the PLRA's exhaustion requirements." Nelson v.Rodas, No. 01 Civ. 7887, 2002 WL 31075804, at *3 (S.D.N.Y. Sept. 17, 2002) (collecting cases). Rivera does allege in his complaint that he complained of his treatment by guards to various sergeants. If those sergeants were the immediate supervisors of the offending employees, then Rivera would have followed the proper procedure of initiating a complaint of staff harassment under the regulations. See N.Y. Comp. Codes R. Regs. tit. 7, § 701.11(b)(1). However, at least from defendants' records, there is no evidence that Rivera appealed any complaints from this time period to the CORC. I note that even if prison officials did not respond as they should have under the regulations, Rivera may still have had to appeal to the CORC to exhaust his claims of staff harassment. See id. § 701.11(b)(6) ("If the superintendent fails to respond within the required time limit, the grievant may appeal his grievance to the CORC."); Petty v. Goord, No. 00 Civ. 803, 2002 WL 31458240, at *4 (S.D.N.Y. Nov. 04, 2002) (noting that § 701.8 "specifically allows an inmate to file an appeal when the grievance committee does not respond to a complaint in a timely manner" and holding that an inmate who does not receive a response must appeal to the next level in order to exhaust his claim). But see Morris v. Eversley, 205 F. Supp.2d 234, 240 (S.D.N.Y. Jun. 13, 2002) (finding that superintendent failed to respond as required under § 701.11, and although plaintiff could have filed an appeal with the CORC, she was not required to do so to exhaust her claims, especially given that her allegations were brought to the attention of the Inspector General's office and others); Ortiz, 323 F.3d at 194 ("More recently, we have ordered that counsel be appointed in four pending cases that address whether inmates who did not fully comply with the dictates of New York law nonetheless exhausted their claims in other ways.").
Rivera's complaint is dismissed without prejudice. If Rivera wishes to pursue any claims asserted in this action, he must file a new complaint. That new complaint must contain only exhausted claims. The complaint could include claims that were exhausted at the time Rivera filed his 2001 complaint, claims that he has since exhausted, and claims he exhausts between now and the filing of the new complaint. If Rivera includes any unexhausted claim in his new complaint, he risks again having the entire complaint dismissed, albeit without prejudice.
Rivera should be aware that § 1983 claims in New York are subject to a three-year statute of limitations. See Owens v.Okure, 488 U.S. 235, 251 (1989). Thus, the statute of limitations has run on Rivera's claims that arise from incidents in November 1999 through February 2000. See Elmore v.Henderson, 227 F.3d 1009, 1011 (7th Cir. 2000) (holding that when a case is dismissed without prejudice "then the tolling effect of the filing of the suit is wiped out and the statute of limitations is deemed to have continued running from whenever the cause of action accrued, without interruption by that filing"). However, Rivera has the benefit of section 205(a) of New York's Civil Practice Law and Rules, and thus he is not barred from bringing those claims from 1999 and 2000 in a new lawsuit. Section 205(a) gives Rivera six months to assert in a new action any claim that was included in the present action, as long as the statute of limitations had not run on the claim at the time he filed this action in 2001. Even if the statute of limitations ran on certain claims during the pendency of this lawsuit, Section 205(a) gives Rivera six months to commence another lawsuit containing those claims. Thus, Rivera may assert his claims from 1999 and 2000 in a new complaint, provided that those claims are exhausted when he files that complaint.
That section provides:
If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.
N.Y.C.P.L.R. § 205(a). This rule applies here, as federal courts in New York are to apply New York's tolling rules to § 1983 claims. See Bd. of Regents of Univ. of State of N.Y. v.Tomanio, 446 U.S. 478 (1980); see also Richardson v.Romano, No. 00 Civ. 1076, 2003 WL 1877955, *2 n. 1 (N.D.N.Y. Mar. 31, 2003) (noting that section 205(a) applies when a court dismisses a complaint without prejudice for failure to exhaust under the PLRA).
The statute of limitations has not run on Rivera's Great Meadow claims, which arise from incidents in April and May 2001. Thus, Rivera need not avail himself of section 205(a) for those claims, but simply must assert those claims before April 2004.
Finally, if any claims in Rivera's new action are claims that were filed in this action, the filing fee for the new action will be waived.
* * *
For the reasons stated above, Rivera's complaint is dismissed without prejudice.
SO ORDERED.