Opinion
21-CV-3164 (AT) (OTW)
09-06-2022
DARRELL ROSE, Plaintiff, v. THE CITY OF NEW YORK., et al., Defendants.
To the Honorable ANALISA TORRES, United States District Judge:
REPORT & RECOMMENDATION
ONA T. WANG, UNITED STATES MAGISTRATE JUDGE
I. Introduction
On April 12, 2021, pro se Plaintiff, Darrell Rose, brought this case alleging that during his pre-trial detention at the Vernon C. Bain Center (“VCBC”), the Department of Corrections (“DOC”) failed to take adequate measures to prevent the spread of the COVID-19 virus among inmates and staff. (ECF 2, 7). Throughout the operative Complaint, Plaintiff claims that the conditions of his confinement violated his constitutional rights. (ECF 7 at 3, 13, 14, 16, 27). On November 19, 2021, Defendants filed a Motion to Dismiss the Amended Complaint because Plaintiff (1) failed to exhaust his administrative remedies; (2) did not allege the personal involvement of Defendant R-Setka; and, (3) failed to allege a basis for municipal liability as against the City of New York. (ECF 23). I held an initial case management conference on December 2, 2021, where I set a deadline by which Plaintiff must oppose the Motion to Dismiss. After several extensions, Plaintiff filed his pro se opposition on July 27, 2022. (ECF 44). On August 1, 2022-two days before Defendants' Reply was due-Defendants sought a monthlong extension because the lead attorney representing Defendants left the Law Department on July 6, 2022. (ECF 45). The Court gave Defendants a short extension until September 2, 2022. (ECF 16). Plaintiff has failed to exhaust his administrative remedies by not appealing the nonresponse of his internal grievance and this failure to exhaust cannot be cured. Upon review of Plaintiff's Complaint, Defendants' Motion to Dismiss, Plaintiff's Opposition and the Defendants' Reply, I recommend that the Defendants' Motion be GRANTED and that the case be DISMISSED with prejudice.
Plaintiff originally attempted to bring this case on behalf for approximately forty other plaintiffs, but by Order dated May 7, 2021, the Court severed all of Plaintiff's claims and ordered that Plaintiff would proceed as the sole Plaintiff in this action. (ECF 4).
Plaintiff does not specify which constitutional rights have been violated, nor the basis for federal jurisdiction. We construe his complaint as alleging that the conditions of his confinement violated his constitutional rights under 42 U.S.C. § 1983.
II. Factual Background
At all relevant times, Plaintiff was a pre-trial detainee incarcerated at VCBC, and housed in a dormitory unit, “1BB.” (ECF 7 at 2-4; ECF 2 at 8). Detainees in 1BB frequently reminded DOC supervisors to adhere to, and enforce, social distancing guidelines, but no adequate measures were taken. (ECF 2 at 4).
For example, at any given time during Plaintiff's detention, 1BB was at or above maximum capacity, holding between 44 to 47 individuals with additional staff present in the unit. (ECF 7 at 4). Beds in 1BB were placed less than six feet apart and detainees shared approximately “five toilets, three urin[als], six sinks, seven shower[s], two mops, [and] four brooms.” (ECF 7 at 4). The housing unit also included 8 tables with 4 seats each, a total of 36 seats for common use (ECF 7 at 5). If detainees were to follow the CDC's guidelines, only 2 individuals would be allowed per table, and thus only 16 individuals could use the space at the same time. (ECF 7 at 5). No disinfectants or sanitizers were available to detainees, allegedly exacerbating the spread of the virus. (ECF 7 at 5). 1BB did not have windows that could be opened to allow air circulation “only one fan that would blow around dust particles [sic] into the dorm block air.” (ECF 2 at 5). When detainees would attempt to abide by COVID-19 guidelines, detainees were threatened with written infraction infractions. (ECF 2 at 5).
1BB's maximum capacity was 50 beds. (ECF 7 at 4).
Defendants posit that the shared conditions of “five toilets, three urin[als], six sinks, seven shower[s], two mops [and] four brooms” among the nearly fifty men in 1BB make up for the fact that the parties lacked access to disinfectants or sanitizers. ECF 23 at 1-2.
Plaintiff does not allege how detainees attempted to abide by COVID-19 protocols other than attempting to refuse entry to the dorm housing area. (ECF 2 at 5).
At one point, Plaintiff estimates there were “6 to 8” or “8 to 9” dormitory units that were placed under quarantine status, (ECF 7 at 5), and that there were no available vaccine doses for detainees (ECF 7 at 6), making social distancing all the more necessary. Plaintiff alleges that there was an empty building on Rikers Island, but DOC refused to move prisoners there to alleviate the overcrowding. (ECF 7 at 13).
Plaintiff alleges the quarantine status and lack of vaccines existed at the time he filed suit. (ECF 7 at 5-6). Plaintiff's complaint is dated April 2, 2021 and docketed April 12, 2021, but does not say for how long these conditions persisted or when they began. (ECF 2 at 9).
Additionally, Plaintiff alleges several Correction Officers (identified by their Badge, “#4805, #3407, #17482”) escorted additional inmates into an already overcrowded dorm. (ECF 7 at 16-17). If the inmates were to protest, Correctional Captain Chacara, Deputy Guity, and other officers would show up with a “probe team” to enforce housing. (ECF 7 at 17).
Plaintiff alleges that as a result of these circumstances, Plaintiff experienced, and continues to experience daily coughing, sore throat, light headaches, dizziness, and COVID symptoms. (ECF 2 at 6).
On February 14, 2021, Plaintiff filed a grievance that the conditions of his confinement did not follow CDC guidance. (ECF 2 at 59). Plaintiff states that he had not received a response from the grievance department, “only that it [h]as been push[ed] forward to the Deputy Warden.” (ECF 7 at 20). On April 12, 2021, Plaintiff filed this suit. (ECF 2).
The Office of Constituent and Grievance Services Inmate Statement Form does not specify what date the form was filed, but does specify the date of incident as February 14th, 2021. ECF 2 at 59.
III. Analysis
A. Applicable Law for Motion to Dismiss
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), a court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See, e.g., Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009). To survive such a motion, a plaintiff must plead enough facts “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). More specifically, the plaintiff must allege enough facts to show “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). For a claim to sufficiently “raise a right to relief above the speculative level,” it must be grounded on factual allegations. Twombly, 550 U.S. at 555. A claim grounded on mere suspicion is not enough to meet this standard. Id. “‘[L]abels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557) (internal citation omitted, alteration in original).
As relevant here, a court is “obligated to afford a special solicitude to pro se litigants.” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010). Therefore, this Court must interpret Plaintiff's submissions “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (internal citations omitted). “However, the liberal treatment afforded to pro se litigants does not excuse a pro se party ‘from compliance with relevant rules of procedural and substantive law.'” Wang v. Palmisano, 157 F.Supp.3d 306, 317 (S.D.N.Y. 2016) (quoting Maisonet v. Metro Hosp. & Health Hosp. Corp., 640 F.Supp.2d 345, 348 (S.D.N.Y. 2009)). Accordingly, the Court may not “invent factual allegations that a plaintiff has not pled.” Daly v. Westchester Cty. Bd. of Legislators, No. 19-CV-4642 (PMH), 2021 WL 229672, at *4 (S.D.N.Y. Jan. 22, 2021) (alterations and quotations omitted) (quoting Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)).
B. Plaintiff Failed to Exhaust His Administrative Remedies
As a preliminary matter, Plaintiff failed to exhaust his administrative remedies by not appealing the nonresponse of his internal grievance. This failure to exhaust cannot be cured.
Accordingly, the Court need not address the Second Circuit's decision in Walker v. Schult, 20-2415 2022 U.S. App. LEXIS 22721 (2d Cir. 2020).
Accordingly, I recommend that the Defendants' Motion be GRANTED, and Plaintiff's case be DISMISSED with prejudice and without leave to replead.
i. The Prison Litigation Reform Act
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought with respect to prison conditions under [§] 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.” 42 U.S.C. § 1997e(a). The exhaustion requirement applies to all personal incidents while in prison. Porter v. Nussle, 534 U.S. 516, 532 (2002) (holding exhaustion is required for “all inmate suits about prison life, whether they involve general circumstances or particular episodes”); see also Johnson v. Killian, 680 F.3d 234, 238 (2d Cir. 2012) (same). The requirement includes actions for monetary damages despite the fact that monetary damages are not available as an administrative remedy. Booth v. Churner, 532 U.S. 731, 741 (2001) (holding exhaustion is required “regardless of the relief offered through administrative procedures”). Moreover, the PLRA mandates “‘proper exhaustion'-that is, ‘using all steps that the agency holds out, and doing so properly,' ... [which] entails ... ‘completing the administrative review process in accordance with the applicable procedural rules.'” Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (alteration omitted) (quoting Woodford v. Ngo, 548 U.S. 81, 88, 90 (2006)); see also Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.”).
As is relevant here, prisoners in the custody of DOC must exhaust all levels of the Inmate Grievance Program (“IGP”) process even if they do not receive a response from the Inmate Grievance Resolution Committee (“IGRC”) or superintendent. See Dabney v. Pegano, 604 Fed.Appx. 1, 4-5 (2d Cir. 2015) (“The IGP provides a clear timeline for appealing grievances to the [Central Office Review Committee (‘CORC')], which applies even when the prisoner does not receive a timely decision from the IGRC or a superintendent. [The] [p]laintiff therefore had an unimpeded path to the CORC, notwithstanding his claims that the ... grievance clerk failed to process his complaint and that the ... superintendent ignored his appeal.” (citation omitted)). If a plaintiff does not receive a response from the IGRC, he must then file an appeal with the prison superintendent and then with the CORC to fully exhaust his grievance. Id. at 3. The IGP explicitly states that “matters not decided within the time limits may be appealed to the next step.” 7 N.Y.C.R.R. § 701.6(g)(2); see also id. § 701.8(g) (same for expedited harassment grievances).
ii. Plaintiff's Grievance Processes
As discussed, Plaintiff filed a grievance about the conditions of his confinement on February 14, 2021 (ECF 2 at 59) but had not received a response from the grievance department, “only that it [h]as been pushed forward to the Deputy Warden.” (ECF 7 at 20). Plaintiff was incarcerated at VCBC at the time he brought suit and amended his complaint. (ECF 7 at 1). Accordingly, the PLRA exhaustion requirement applies. See Collins v. Goord, 438 F.Supp.2d 399, 410 (S.D.N.Y. 2006).
Under these circumstances, Plaintiff had an obligation under the PLRA to appeal the non-response to the prison superintendent, and then with the CORC to fully exhaust his grievance. See also Mena v. City of New York, No. 13-CV-2430, 2016 WL 3948100, at *4 (S.D.N.Y. July 19, 2016) (“[T]he law is well-settled that an inmate's failure to take an available administrative appeal, even when the initial grievance receives no response, constitutes a failure to exhaust administrative remedies.” (internal quotation marks omitted)). Accordingly, Plaintiff failed to exhaust his administrative remedies.
Although pro se complaints should generally be given leave to amend when there is “any indication that a valid claim might be stated,” Thompson v. Carter, 284 F.3d 411, 416 (2d Cir. 2002), amendment may be denied upon a finding of futility. See Chill v. Gen. Elec. Co., 101 F.3d 263, 271-72 (2d Cir. 1996). Where a plaintiff has failed to exhaust his administrative remedies as mandated by the PLRA, and the time to do so has elapsed or the plaintiff is otherwise no longer eligible to seek such redress, then leave to replead should be denied and the case should be dismissed with prejudice. See Berry v. Kerik, 366 F.3d 85, 88 (2d Cir. 2004) (“the broader dictum that dismissal for failure to exhaust ‘should' be without prejudice would extend too far if applied to cases where exhaustion was required but administrative remedies have become unavailable after the prisoner had ample opportunity to use them and no special circumstances justified failure to exhaust”); Greene v. Desousa, 2016 WL 3460376, at *3 (E.D.N.Y. June 21, 2016); Davis v. Reilly, 324 F.Supp.2d 361, 366 (E.D.N.Y. 2004); see also Arnold v. State of New York, No. 01 Civ. 2131, 2003 WL 22901052, at *2 (S.D.N.Y. Dec. 10, 2003) (dismissing complaint with prejudice because of the “inability to exhaust ... due to the time limitations contained in New York's exhaustion scheme”); Grafton v. Hesse, No. CV154790SJFGRB, 2017 WL 9487092, at *10 (E.D.N.Y. Aug. 25, 2017), R&R adopted sub nom. Grafton v. Assistant Deputy Undersheriff Hesse, No. 15-CV-4790, 2017 WL 4286266 (E.D.N.Y. Sept. 27, 2017), aff'd sub nom. Grafton v. Hesse, 783 Fed.Appx. 29 (2d Cir. 2019); Orta v. City of New York Dep't of Correction, 01 CIV. 10997 (AKH), 2003 WL 548856, at *3 (S.D.N.Y. Feb. 25, 2003) (dismissing with prejudice since plaintiff is no longer incarcerated at Rikers Island); Cole v. Miraflor, 02 CIV.9981 (RWS), 2003 WL 21710760, at *3 (S.D.N.Y. July 23, 2003) (dismissing with prejudice because plaintiff is unable to cure the failure to exhaust).
Here, Plaintiff has been released from custody, and the time and opportunity to file relevant grievances appear to have long elapsed. See ECF 44 at 32 (plaintiff's address listed in Brooklyn, NY). Accordingly, the undersigned respectfully recommends that the Complaint be dismissed with prejudice and without leave to replead.
IV. Conclusion
For the reasons stated above, I recommend that the Motion to Dismiss be GRANTED. In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6 (allowing three (3) additional days for service by mail). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be addressed to the Honorable Analisa Torres, United States District Judge. Any requests for an extension of time for filing objections must be directed to Judge Torres.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983). If Plaintiff wishes to review, but does not have access to, cases cited herein that are reported on Westlaw, he should request copies from the Defendants. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009).
Defendants are directed to serve a copy of this Report and Recommendation on Plaintiff by mail and file proof of service on the docket within seven days. Alternatively, if circumstances related to the ongoing COVID-19 pandemic prevents their service, they must file a letter on the docket instead.