Opinion
01-CV-0155E(Sr)
January 13, 2004
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Plaintiff, proceeding pro se, commenced this civil rights action on March 5, 2001 pursuant to 42 U.S.C. § 1983 alleging that defendants had violated his due process and equal protection rights while he was incarcerated at the Attica Correctional Facility ("Attica"). Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP") dismissing plaintiff's Amended Complaint. For the reasons stated hereinbelow, defendants' motion will be granted.
By order dated January 7, 2002, the undersigned dismissed the claims against defendants Selsky, Bartz, Lambert, Pierce, Caryl, Nicholson and Lomanto in their official capacities and granted plaintiff leave to submit an amended complaint against defendants in their individual capacities. See Black v. Selsky, 2002 WL 450061, at *3 (W.D.N.Y. 2002). Plaintiff subsequently filed an Amended Complaint.
The following facts, which are construed liberally and most favorably for plaintiff, are undisputed unless otherwise noted. On February 21, 1999 plaintiff went into the visiting room bathroom during the course of a family visit. The bathroom was being monitored by Lomanto through a closed-circuit television. Upon observing what he perceived as plaintiff inserting something into his rectum, Lomanto terminated plaintiff's visit and confronted him about his actions. Plaintiff denied that he inserted anything into his rectum. Caryl subsequently strip-searched plaintiff and ran him through a metal detector. Although nothing was found, Lomanto placed plaintiff on "Special Watch." Lomanto subsequently completed a misbehavior report, which was also signed by Cary 13, charging plaintiff with several rules violations. A second misbehavior report was filed against plaintiff for his conduct while he was housed in the Special Watch Unit. Plaintiff pled not guilty to all of the charges except for committing an unhygienic act. A hearing was held and presided over by Lambert. Plaintiff was found guilty of all of the charges in the first misbehavior report. With respect to the second misbehavior report, Lambert found plaintiff guilty of refusing a direct order and committing an unhygienic act and found him not guilty on all of the other charges. Lambert sentenced plaintiff accordingly. Upon appeal by plaintiff, Selsky affirmed Lambert's decision. Plaintiff then commenced an Article 78 proceeding in New York State Supreme Court. The New York State Appellate Division, Fourth Department ("Fourth Department"), subsequently modified Lambert's decision by reversing the guilty findings with regard to all but two of the charges against plaintiff. Black v. Goord, 270 A.D.2d 846, 847 (4th Dep't 2000). The Fourth Department remanded the matter to the New York State Department of Correctional Services ("DOCS") and ordered that plaintiffs penalties be modified in accordance with its Order. Ibid. Selsky modified plaintiff's punishment accordingly. Plaintiff then commenced the instant action. Pursuant to his subsequently filed Amended Complaint, plaintiff alleges that his constitutional rights were violated due to the allegedly false misbehavior reports and resultant penalties. In addition, plaintiff has asserted (1) that he was denied adequate medical care, (2) that his due process rights were violated when he was removed from his assigned placement program — i.e., his job in the metal shop — and (3) a "conditions of confinement" claim. See Am. Compl. ¶¶ 12-15.
Special Watch is a form of temporary isolation with the purpose of monitoring an inmate's bowel movements in order to examine them for contraband. Defs.' Mem. of Law at 5.
Plaintiff was charged with smuggling, making false statements and violating Attica's visiting procedures. Selsky Decl., Ex. D.
Plaintiff was charged with refusing to obey an order, violating frisk and search procedures, committing an unhygienic act, failure to maintain a clean cell and interference with an employee. Selsky Decl., Ex. E.
Lambert's guilty findings with regard to the charges of committing an unhygienic act and refusing a direct order were affirmed by the Fourth Department.
Selsky reduced plaintiff's punishment by eliminating or reducing some of the penalties that had been previously imposed by Lambert.
Specifically, plaintiff alleges that the defendants who participated in filing the two misbehavior reports acted in concert with the defendants responsible for conducting the Tier III disciplinary hearing with the alleged purpose of violating his civil rights. Am. Compl. ¶¶ 9, 11, 17, 19.
FRCvP 56(c) states that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." A genuine issue of fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether summary judgment is appropriate, this Court must draw all factual inferences in favor of the non-moving party. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970).
Nevertheless, the non-moving party must rebut the motion for summary judgment with more than conclusory allegations and general denials. FRCvP 56(e); see also Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) ("conclusory allegations, conjecture and speculation *** are insufficient to create a genuine issue of fact"). Furthermore, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986).
Defendants argue that they are entitled to summary judgment because plaintiff has failed to exhaust his administrative remedies. The Prisoner Litigation Reform Act ("PLRA") pertinently 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." 42 U.S.C. § 1997e(a). In New York State, such remedies consist of a three-step review process. First, "[a]n inmate must submit a complaint to the Grievance Clerk within 14 calendar days of an alleged occurrence ***. Exceptions to this time limit may be approved by the Inmate Grievance Program supervisor based on mitigating circumstances ***." 7 N.Y.C.R.R. § 701.7(a)(1). The grievance is then investigated and reviewed by the Inmate Grievance Resolution Committee ("IGRC") for resolution. 7 N.Y.C.R.R. § 701.7(a)(3)-(5). Second, the inmate may appeal the IGRC's decision to the superintendent of the facility. 7 N.Y.C.R.R. § 701.7(b). Finally, the superintendent's decision may be appealed to the Central Office Review Committee ("CORC"), which makes the final administrative determination. 7 N.Y.C.R.R. § 701.7(c). A prisoner may seek relief in a federal court pursuant to 42 U.S.C. § 1983 only after such administrative review has been exhausted. See Neal v. Goord, 267 F.3d 116, 121-123 (2d Cir. 2001) (stating that exhaustion of administrative remedies is required before an inmate may commence an action in federal court); see also Peoples v. Beldock, 212 F. Supp.2d 141, 142 (W.D.N.Y. 2002) (stating that only upon exhaustion of the three levels of review provided for in 7 N.Y.C.R.R. § 701.7 may a prisoner seek relief pursuant to section 1983 in federal court). Finally, defendants bear the burden of proving that plaintiff failed to comply with the exhaustion requirements of the PLRA. Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir. 1999); Livingston v. Piskor, 2003 WL 1869946, at *3 (W.D.N.Y. 2003).
New York also provides prisoners with an informal grievance process with regard to harassment, which provides that an inmate must informally report such grievances to the immediate supervisor of the alleged harassing employee. See 7 N.Y.C.R.R. §§ 701.11(b)(1)-(2). Once an informal grievance report has been made, the supervisor is obligated to forward it to the facility's superintendent, who has twelve days to render a decision on the grievance. 7 N.Y.C.R.R §§ 701.11(b)(3)-(5). An inmate may appeal his grievance to the CORC if either the superintendent fails to respond within the required time limit or renders an unfavorable decision. 7 N.Y.C.R.R. §§ 701.11(b)(6)-(7).
In support of their motion, defendants have submitted the affidavit of George Struebel, Attica's Inmate Grievance Program supervisor. Struebel states that inmates at Attica have an administrative grievance procedure available to them pursuant to Title 7 N.Y.C.R.R. § 701. Struebel ¶¶ Aff. ¶¶ 2, 7. Struebel also states that he examined Attica's grievance program documentation to "ascertain whether or not inmate Black had filed grievances with respect to the incident of February 21, 1999, or for his subsequent placement in special watch, the resulting disciplinary procedures which resulted from the incident, and the denial of medical care which allegedly occurred thereafter." Id. ¶ 5. Struebel concludes that plaintiff "never filed a grievance with respect to these subjects." Id. ¶ 6.
Plaintiff does not dispute such factual assertions. Thus, defendants have satisfied their initial burden under FRCvP 56(e) inasmuch as they have shown both the existence of an inmate grievance procedure at the time of the incident and that plaintiff failed to avail himself of such a grievance mechanism. However, plaintiff contends that he satisfied the exhaustion requirements because he wrote two letters — one to Glen S. Goord, the Commisioner of DOCS, and one to Walter Kelly, Attica's Superintendent — in which he complained of his treatment by the defendants regarding the circumstances which led to his placement in the Special Watch Unit and resulting misbehavior reports. Plaintiffs' two letters do not satisfy the PLRA's exhaustion requirements.
Indeed, plaintiff concedes that "[c]omplaints concerning excessive use of force, harassment, assault by staff, medical care, and violations of procedure by staff are subjects which an inmate may grieve pursuant to the inmate grievance program." Pl's Statement of Undisputed Facts ¶ 44.
To begin, there is no doubt that plaintiff's allegations as stated in his Amended Complaint are subject to the PLRA's exhaustion requirements. See Porter v. Nussle, 534 U.S. 516, 532 (2002) (holding that "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong") (emphasis added). Additionally, plaintiff's completion of the disciplinary appeal process regarding the charges in the two misbehavior reports does not satisfy the PLRA's exhaustion requirement. His present section 1983 claims, which include allegations of staff misconduct related to those incidents giving rise to his discipline, must be grieved separately. See Scott v. Gardner, 287 F. Supp.2d 477, 489 (S.D.N.Y. 2003) (holding that plaintiff had not exhausted his administrative remedies although he had completed the disciplinary appeal process with regard to a misbehavior report because he had not filed a separate grievance); McCoy v. Goord, 255 E Supp.2d 233, 256 (S.D.N.Y. 2003) (holding that "[a]n appeal of the disciplinary hearing determination does not satisfy the PLRA's exhaustion requirement."). Finally, although it is unclear within the Second Circuit "whether attempts to lodge informal grievances can satisfy the [PLRA's] exhaustion requirement," Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003), it is beyond doubt that plaintiff's two letters are insufficient to satisfy such requirement. See Scott, at 488-489 ("Letters of complaint, regardless of the addressee, are not part of the grievance process and do not satisfy the exhaustion requirement."); Byas v. New York, 2002 WL 1586963, at *2-3 (S.D.N.Y. 2002) (citing cases within the Second Circuit for the proposition that "[p]risoners may not bypass [New York's grievance procedures] by sending letters directly to the superintendent"). Even if this Court was to deem plaintiff's two letters as the commencement of an informal grievance process pursuant to 7 N.Y.C.R.R. § 701.11 — see supra note 9 —, plaintiff has still failed to exhaust his administrative remedies because he has not exhausted the appellate remedies available to him. See Renelique v. Doe, 2003 WL 23023771, at *12 (S.D.N.Y. 2003) (holding that, although plaintiff had sent eleven complaining letters to various prison officials, he had failed to exhaust his administrative remedies because he had not exhausted his appellate remedies). Plaintiff simply cannot be allowed to bypass the Inmate Grievance Program because it "would undermine the important objective of creating an efficient and effective prison grievance mechanism." Beatty v. Goord, 210 F. Supp.2d 250, 255-256 (S.D.N.Y. 2000). Thus, defendants' summary judgment motion must be granted inasmuch as there is no genuine issue of material fact that plaintiff has not exhausted his administrative remedies.
Consequently, the Court need not address defendants' other arguments in support of their motion.
Accordingly, it is hereby ORDERED that defendants' motion for summary judgment is granted, that plaintiff's Amended Complaint is dismissed without prejudice and that the Clerk of this Court shall close this case.