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holding that an inmate is required to appeal a grievance, even if he fails to receive a response to his grievance, in order to exhaust administrative remedies
Summary of this case from McGee v. WestOpinion
04 Civ. 6678 (RMB).
July 14, 2005
DECISION AND ORDER
I. Background
On or about August 18, 2004, pro se plaintiff Eduardo Acosta ("Acosta" or "Plaintiff"), an inmate at Sing Sing Correctional Facility ("Sing Sing"), filed this action against defendants Corrections Officers Paul Dawkins ("Dawkins" or "Defendant") and Ferdinand Camacho ("Camacho"), pursuant to 42 U.S.C. § 1983. Plaintiff contends that on the morning of January 25, 2004, Dawkins and Camacho used excessive and unjustified force against him, causing physical injuries for which he required treatment at the Sing Sing facility hospital.
Camacho was never served and the complaint against him may be dismissed for that reason alone. (See Marshal's Process Receipt and Return of Service Unexecuted, Docket No. 7, 04 Civ. 6678 (RMB)); see e.g., Moultry v. City of Poughkeepsie, 154 F. Supp. 2d 809, 813 (S.D.N.Y. 2001) (dismissing without prejudice for lack of personal jurisdiction where plaintiff "failed to demonstrate . . . good cause for its failure to properly serve (or attempt to correct service to) the individual defendants"). Defendant's motion to dismiss was brought only on Dawkins' behalf.
Defendant moved to dismiss Plaintiff's complaint ("Complaint") on February 25, 2005, ("Motion to Dismiss" or "MTD"), because it "fails to allege that plaintiff has exhausted his administrative remedies as required by the Prisoners' Litigation Reform Act of 1995." (MTD at 1.) Plaintiff opposed the motion in a response dated May 3, 2005 (but filed on June 10, 2005) ("Plaintiff's Opposition" or "Pl. Opp."), arguing that he "attempted to get a response from the Inmate Grievance Coordinator at the Sing Sing facility." (Pl. Opp. at 3.) On May 27, 2005, Defendant submitted a reply ("Defendant's Reply" or "Def. Rep."), contending that "there is nothing in plaintiff's response or otherwise to suggest that the IGP [Inmate Grievance Procedure] was not fully available" to Plaintiff. (Def. Rep. at 9.) On June 10, 2005, Plaintiff filed an affidavit in opposition to Defendant's reply ("Plaintiff's Affidavit" or "Pl. Aff."), arguing that "he has no control over the Grievance Office once he mails them a grievance." (Pl. Aff. at 2.)
For the reasons set forth below, Defendant's motion to dismiss is granted and the case is dismissed without prejudice.
II. Legal Standard
In reviewing a motion to dismiss, the court "must accept as true the factual allegations in the complaint and draw all inferences in favor of the plaintiff." Perkins v. Obey, No. 00 Civ. 1691, 2005 U.S. Dist. LEXIS 2774, at *7 (S.D.N.Y. Feb. 23, 2005); see also Martinez v. Williams, 349 F. Supp. 2d 677, 680 (S.D.N.Y. 2004). Dismissal of the claim is proper when "it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir. 2001). "The issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims." Madison v. Mazzuca, No. 02 Civ. 10299, 2004 U.S. Dist. LEXIS 26137, at *18 (S.D.N.Y. Dec. 30, 2004). "Conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss."Gatlin v. Med. Staff, No. 02 Civ. 3732, 2003 U.S. Dist. LEXIS 14986, at **7-8 (S.D.N.Y. Aug. 22, 2003).
"When considering the claims of a pro se plaintiff, the court is obligated to construe the pleadings liberally in plaintiff's favor, and interpret them to raise the strongest arguments they suggest." Rivera v. Pataki, No. 04 Civ. 1286, 2005 U.S. Dist. LEXIS 2747, at *26 (S.D.N.Y. Feb. 14, 2005). Yet, pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law." Scott v. Gardner, 287 F. Supp. 2d 477, 483 (S.D.N.Y. 2003).
In deciding a motion to dismiss, a court may consider the pleadings and exhibits attached thereto, statements or documents incorporated by reference in the pleadings, and matters of which judicial notice may be taken. Hattley v. Goord, No. 02 Civ. 2339, 2003 U.S. Dist. LEXIS 4856, at *29 (S.D.N.Y. Mar. 27, 2003). "[C]ourts routinely consider extrinsic material on a motion to dismiss for nonexhaustion, without first requiring conversion [to summary judgment] pursuant to Rule 12(b) or (c)."McCoy v. Goord, 255 F. Supp. 2d 233, 250 (S.D.N.Y. 2003).
III. Analysis
Defendant argues that Plaintiff failed to exhaust his administrative remedies because (i) there is no record that Plaintiff ever filed an initial grievance with the Sing Sing Inmate Grievance Resolution Committee ("IGRC") on or about January 26, 2004 (or within fourteen days thereafter), or any grievance "updates" which Plaintiff claims he sent to the Sing Sing Inmate Grievance Coordinator on or about July 6, 2004, September 2004, and March 18, 2005 (Def. Rep. at 4), and (ii) Plaintiff's March 21, 2005 letter to the Sing Sing Superintendent was both untimely under Directive 4040 and insufficient to constitute exhaustion of Plaintiff's available administrative remedies under the Prisoner Reform Litigation Act of 1995 (" PLRA"), 42 U.S.C. § 1997e (2005). (Def. Rep. at 8) Plaintiff alleges in the Complaint that he filed a "grievance, then wrote to the Superintendent." (Complaint at II.C.1) He argues that he (i) made "an attempt to exhaust his administrative remedies" by filing an initial grievance with the IGRC on January 26, 2004, and sending several "update" letters to the IGRC on July 6, 2004, September 2004, and March 18, 2005, acknowledging that he received no response from the IGRC, (Pl. Opp. at 2-3), and (ii) wrote directly to the Sing Sing superintendent on March 21, 2005 ("March 21 Letter") "asking that [the superintendent] please take whatever action [he] can . . . so that [Plaintiff] may exhaust [his] administrative remedies." (Id.; Letter from Acosta to Superintendent Fischer dated March 21, 2005, attached to Pl. Opp.) Plaintiff received a response to his March 21 Letter on March 28, 2005 ("March 28 Letter") from Robert Ercole, Sing Sing's First Deputy Superintendent, stating that "[i]t seems odd that [Plaintiff is] addressing this issue as late as 14 months. Based on Directive 4040 time limits [his] grievance can not [sic] be processed at this time." (Letter from Superintendent Ercole to Acosta dated March 28, 2005, attached to Pl. Opp.)
Sing Sing records submitted by Defendant do show that Plaintiff filed a grievance on or about February 11, 2004 in which he complained that a disciplinary hearing brought against him resulting from the events of January 25, 2004 should be dismissed as untimely. (See Ex. B to MTD) This grievance was denied by the IGRC on February 19, 2004 because Plaintiff was "seeking a decision or an appeal of a decision otherwise attainable through established . . . Disciplinary Proceeding . . . mechanisms." (Id. (citing to N.Y. Dep't Corr. Servs. Directive 4040 (August 22, 2003) (as authorized by N.Y. Corr. Law § 139 (2005)) ("Directive 4040") at V.A.5)) This denial does not appear to have been appealed by Plaintiff to the Sing Sing Superintendent within four days of receiving it, or ever. (Id.); Directive 4040 at V.B.1. Nor did Plaintiff appeal this grievance to the Central Office Review Committee ("CORC"). See Directive 4040 at V.B.5.
Sing Sing administers a three-step IGP instituted by the New York State Department of Correctional Services ("DOCS").See Directive 4040; see also 7 N.Y.C.R.R. § 701 et seq. The first step is the filing of a written grievance with the IGRC within fourteen calendar days of the incident complained of. Directive 4040 at V.A.1. The IGRC must conduct a hearing or resolve the grievance informally within seven working days of receiving the grievance, and if a hearing has been held, the IGRC must communicate its decision to the inmate within two working days of the hearing. Id. at V.A.2-4. Second, "[w]ithin four (4) working days after receipt of the committee's written response to the grievance, the inmate . . . may appeal the IGRC action to the superintendent by filing an appeal with the grievance clerk."Id. at V.B.1; see also Id. at VI.G; Taylor v. N.Y. State Dep't of Corr., No. 03 Civ. 1929, 2004 U.S. Dist. LEXIS 25795, at *12 (S.D.N.Y. Dec. 22, 2004) (" If the IGRC does not respond to an inmate's initial grievance, the inmate may still appeal to the superintendent of his facility.") (emphasis added). "In all institutional matters, the superintendent shall render a decision on the grievance and transmit said decision, with reasons stated, to the grievant . . . within ten (10) working days from the time the appeal was received." Id. at V.B.3. The Superintendent's response "contains simple directions on how this decision may be appealed to the next level." Id. at V.B.4. Third, "[w]ithin four (4) working days after receipt of the superintendent's written response to the grievance, the inmate . . . may appeal the superintendent's action to the CORC." Id. at V.B.5. "The CORC shall review each appeal received at its level, render a decision on the grievance and transmit its decision to the facility, with reasons stated, for the grievant . . . within twenty (20) working days from the time the appeal was receiced."Id. at V.C.2. Directive 4040 explicitly states that "[t]ime limit extensions may be requested at any level of review. . . . Absent such extension, matters not decided within the time limits may be appealed to the next step." Id. at VI.G; see also 7 N.Y.C.R.R. § 701.8.
Both Plaintiff and Defendant have attached materials to their moving papers. Defendant attaches (i) the affidavit, dated May 26, 2005, of Richard Colon, Inmate Grievance Procedure Supervisor at Sing Sing (Tab 1 to the Declaration of Jennifer L. Johnson, dated May 26, 2005) explaining, among other things, that "there is no record, or any other information or knowledge providing reason to believe that inmate Acosta filed the grievance he claims to have submitted on January 26, 2004", (ii) a computer printout detailing Plaintiff's Sing Sing grievance history, and (iii) a copy of the grievance Acosta filed on February 11, 2004 alleging that a "tier 3 [disciplinary hearing against him] must be dismissed" as untimely (Ex. B to MTD). Plaintiff attaches copies of the purported "update letters" and the March 21 and March 28 Letters. With the exception of the Colon affidavit, the Court has considered the materials provided by both Plaintiff and Defendant. See Gomez v. Warden of Otisville Corr. Facility, No. 99 Civ. 9954, 2000 U.S. Dist. LEXIS 14508, at *2 n. 1 (S.D.N.Y. Sept. 29, 2000) (declining to consider affidavits submitted in support of a motion to dismiss and "choos[ing] not to convert the motion to dismiss into one for summary judgment"); Rivera v. Pataki, No. 01 Civ. 5179, 2003 U.S. Dist. LEXIS 11266, *9 (S.D.N.Y. Sept. 29, 2000) (considering "an attached computer printout list[ing] all of the appeals filed by [plaintiff]" on a motion to dismiss); see also Orta v. City of N.Y. Dep't of Corr., No. 01 Civ. 10997, 2003 U.S. Dist. LEXIS 2682, **1-3 (S.D.N.Y. Feb. 25, 2003) (on a motion to dismiss, "evidence shows that [plaintiff] did not comply with the grievance procedure"); Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001) ("we include in this analysis [of a 12(b)(6) motion to dismiss] not only the assertions made within the four corners of the [pro se] complaint itself, but also those contained in documents attached to pleadings or in documents incorporated by reference.").
See note 2 above.
A. Exhaustion
Under the PLRA, "[n]o action shall be brought with respect to prison conditions under [Section 1983] or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a) (2005). This 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 (2002).
While Defendant argues that there is no record of an initial grievance having been filed by Plaintiff, (see Ex. A to MTD (Sing Sing computer printout detailing Acosta's grievance history), Plaintiff alleges in the Complaint that he did file an initial grievance on January 26, 2004 against Dawkins and Camacho. (Complaint at II.C.1) The Court accepts the factual allegations of Plaintiff's complaint as true, Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996), and concludes there is a factual issue as to whether Plaintiff ever filed an initial grievance.Burns v. Zwilliger, No. 02 Civ. 5802, 2005 U.S. Dist. LEXIS 1912, at *6 (S.D.N.Y. Feb. 9, 2005). That is, there is (some) doubt as to whether Plaintiff complied with the first step of the IGP.
There is no doubt that Plaintiff failed to pursue the second and third steps of the Sing Sing IGP with respect to his January 26, 2004 grievance. That is, if in fact Plaintiff did file a grievance on January 26, 2004 and did not receive a response from the IGRC within seven days as provided by Directive 4040 V.A.3, he was, nevertheless, required to "appeal any unsatisfactory response (including lack of response)" within four days. (MTD at 4 (emphasis added));See Taylor, 2004 U.S. Dist. LEXIS at *18 ("failure to receive a response from the IGRC does not relieve an inmate of his obligation to pursue an appeal or otherwise exhaust his administrative remedies."); Walters v. Carpenter, No. 02 Civ. 0664, 2004 U.S. Dist. LEXIS 11471, at *10 (S.D.N.Y. June 22, 2004) ("Even if a prisoner receives no reply to a grievance or appeal, he is not excused from completing the appeals process.");Petty v. Goord, No. 00 Civ. 803, 2002 U.S. Dist. LEXIS 21197, at *12-14 (S.D.N.Y. Nov. 4, 2002) (same). Plaintiff does not allege in the Complaint that he complied with the appeal procedure. (See Complaint at II.C.1)
Plaintiff's "update letters", assuming arguendo they were sent, do not change the result because they were also untimely.See Directive 4040 V.A.1 (initial grievances must be filed "within fourteen (14) calendar days of an alleged occurrence"). Pursuant to Directive 4040, a plaintiff must file an appeal with the (next) appellate level within four days (i.e., "plaintiff's right to appeal following a failure to respond to the [initial] grievance began, at the latest, nine working days after the grievance was filed. . . . Plaintiff would then have had up to four working days . . . to file an appeal."). Taylor, 2004 U.S. Dist. LEXIS at *34; see Directive 4040 at V.A.1; V.B.1 5;Mills v. Garvin, No. 99 Civ. 6032, 2001 U.S. Dist. LEXIS 3333, at *8 (S.D.N.Y. Mar. 2, 2001) ("letter writing is not the equivalent of an exhaustion of administrative remedies under the PLRA.").
In Burns v. Zwilliger, No. 02 Civ. 5802, 2005 U.S. Dist. LEXIS 1912 (S.D.N.Y. Feb. 9, 2005), defendants sought to dismiss plaintiff's complaint based on non-exhaustion and there was a dispute over whether plaintiff had filed an initial grievance. The Burns Court dismissed plaintiff's complaint because he "failed to timely appeal his grievance when no action was taken on it within seven days of its filing." Id. at *7. The Court explained that, "[a]ssuming that [plaintiff] filed a timely grievance . . . and did not receive a response within seven days, he should have appealed to the IGP Superintendent . . . or present[ed] mitigating circumstances to explain his delay." Id. at **7-8; see also Mendoza v. Goord, No. 00 Civ. 0146, 2002 U.S. Dist. LEXIS 22573, at *6 (S.D.N.Y. Nov. 21, 2002) ("[E]ven accepting [Plaintiff]'s claim that he was never notified of the rejection of his grievance (or even had that rejection never occurred), the regulations clearly permit an appeal, and filing such an appeal is accordingly required by § 1997e(a) before a suit can be brought in federal court.").
Plaintiff failed timely to appeal his grievance to the Sing Sing Superintendent when he did not receive a response from the IGRC. When Plaintiff did seek the Superintendent's assistance on March 21, 2005, it was well over a year after he (allegedly) filed (or should have filed) his initial grievance, and more than six months after filing the instant complaint. See Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001) (overruled on other grounds) ("subsequent exhaustion after suit is filed . . . is insufficient" to satisfy the PLRA); Giano v. Goord, 380 F.3d 670, 677 (2d Cir. 2004) ("prisoners may not circumvent the exhaustion requirement simply by waiting to bring a Section 1983 action until their administrative complaints are time-barred."). B. Excuse
Nor did Plaintiff appeal to the CORC from the Superintendent's March 28, 2005 decision denying as untimely Plaintiff's petition. Indeed, Plaintiff has acknowledged that he still has not yet exhausted his administrative remedies. "[Plaintiff indicates he has] been trying [his] best to exhaust [his] administrative remedies with Mr. Colon, the Inmate Grievance Coordinator here at the Sing Sing facility by consistently writing up-dating letters to him." (Letter from Acosta to U.S. Magistrate Judge Kevin Nathaniel Fox dated March 21, 2005, attached to Pl. Opp.); see also Barney v. Bureau of Prisons, No. 02 Civ. 5284, 2004 U.S. Dist. LEXIS 24691, at *3 (S.D.N.Y. Dec. 8, 2004).
"Failure to exhaust administrative remedies is often a temporary, curable procedural flaw." Berry v. Kerik, 366 F.3d 85, 87 (2d Cir. 2003). "If the time permitted for pursuing administrative remedies has not expired, a prisoner who brings suit without having exhausted these remedies can cure the defect simply by exhausting them and then reinstituting his suit. . . . In such circumstances . . . dismissal without prejudice is appropriate." Id. (citation omitted); Neal v. Goord, 267 F.3d 116, 123 (2d Cir. 2001) (overruled on other grounds); Giano v. Goord, 250 F.3d 146, 151 (2d Cir. 2001).
In some circumstances, a prisoner's failure to exhaust available administrative remedies may be excused. Giano, 380 F.3d at 675; Berry v. Kerik, 366 F.3d 85, 87-88 (2d Cir. 2004). A three-part inquiry is made where a prisoner contends that his failure to exhaust should be excused, Hemphill v. N.Y., 380 F.3d 680, 686 (2d Cir. 2004), and, in such cases, the court should consider whether (1) administrative remedies were "available" to the plaintiff, Abney v. McGinnis, 380 F.3d 663, 668-69 (2d Cir. 2004), (2) defendant has waived the non-exhaustion defense by failing to raise or preserve it,Johnson v. Testman, 380 F.3d 691, 696 (2d Cir. 2004), or (3) defendants' own actions estop them from raising non-exhaustion,Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004). In addition, "there are certain `special circumstances' in which, though administrative remedies may have been available and though the government may not have been estopped from asserting the affirmative defense of non-exhaustion, the prisoner's failure to comply with administrative procedural requirements may nevertheless have been justified." Abney, 380 F.3d at 667 (citing Giano, 380 F.3d at 676).
Plaintiff does not point to any persuasive reason or special circumstance to justify his failure to exhaust the administrative remedies available to him. While Plaintiff generally accuses "these two Corrections Officers, and others" of "making sure that grievance [sic] filed with the administration continue [sic] to disappear and not be logged in," (Pl. Aff. at 2), he does not allege that the IGP was "unavailable" to him. In fact, when he filed a grievance on February 11, 2004, it was recorded on the Sing Sing computer printout of Plaintiff's grievance history (see Ex. A to MTD), and when he wrote to the Superintendent on March 21, 2005, he received a prompt reply. See Mendoza, 2002 U.S. Dist. LEXIS at *5 ("If, as a result of a negligent error by prison officials — or even their deliberate attempt to sabotage a prisoner's grievance — the prisoner [does not receive a response] on his complaint, he is not thereby forestalled from appealing"). Administrative remedies were "available" to Plaintiff because could (should) have (1) appealed to the Sing Sing Superintendent within four days after failing to receive a response from the IGRC by on or about February 6, 2004 (Id. at V.B.1; VI.G), and (2) ultimately, appealed to the CORC within four days of receiving a response from the Superintendent on or about March 28, 2005. (Id. at V.B.5; VI.G). See Taylor, 2004 U.S. Dist. LEXIS at *17-22 (explaining that, "even if the IGRC did not respond within the allotted time, . . . [Directive 4040] provided plaintiff with a clear course of action under the circumstances"). Defendant timely raised non-exhaustion in his Motion to Dismiss. See Samules v. Erns, No. 99 Civ. 10426, 2004 U.S. Dist. LEXIS 25796, at *8 (S.D.N.Y. Dec. 20, 2004) (granting motion to dismiss where defendants did not "forfeit the affirmative defense of non-exhaustion by failing to raise it or preserve it").
Nor should Defendant be estopped from raising non-exhaustion as an affirmative defense. See Taylor, 2004 U.S. Dist. LEXIS at **22-24. In Taylor, as in the case at bar, plaintiff argued that his complaint should not be dismissed because the Sing Sing IGRC failed to respond to his initial grievance. The Court dismissed plaintiff's complaint and found that defendants were not estopped because "[a]lthough it may be that prison officials failed to timely advance the inmate's grievance at the initial level, . . . any such failure did not prevent him from seeking his administrative remedies." Id. In the instant case, Plaintiff's "failure to receive a response from the IGRC does not relieve [him] of his obligation to pursue an appeal or otherwise exhaust his administrative remedies." Id. at *18.
Plaintiff also does not allege any "special circumstances" that might justify his failure to exhaust his administrative remedies. "An examination of the record reveals that administrative remedies were available to plaintiff, that neither waiver nor estoppel preclude defendants from raising this defense. There are no special circumstances excusing plaintiff's failure to exhaust." Samules, 2004 U.S. Dist. LEXIS at *8 (internal citations omitted) (granting motion to dismiss); see also Freeman v. Goord, No. 02 Civ. 9033, 2004 U.S. Dist. LEXIS 23873, at **9-10 (S.D.N.Y. 2004) (granting motion to dismiss where "there is no evidence in the record . . . of any `special circumstances' in this action. Nor is there any indication that the defendants failed to implement any prior, favorable ruling in [Plaintiff]'s favor, therein rendering a grievance meaningless and triggering `some never-ending cycle of grievances.'") (citingAbney, 380 F.3d at 669). "If [Plaintiff] has now succeeded in exhausting all of his administrative remedies, then, provided his claims are not time-barred, he should be allowed to refile his case." Baez v. Bureau of Prisons, No. 02 Civ. 9216, 2004 U.S. Dist. LEXIS 8183, at *19 (S.D.N.Y. May 11, 2004).
"If the court finds that administrative remedies were available to the plaintiff, and that the defendants are not estopped and have not forfeited their non-exhaustion defense, but that plaintiff nevertheless did not exhaust available remedies, the court should consider whether `special circumstances' have been plausibly alleged that justify the prisoner's failure to comply with administrative procedural requirements." Hemphill, 380 F.3d at 686.
IV. Order
For the reasons stated herein, the Court grants Defendant's motion to dismiss. Plaintiff is directed to exhaust Sing Sing administrative remedies, including application(s) for time extension(s) if he can show good cause.