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finding that the DOCCS's determination that the plaintiff's grievance was untimely "is conclusive on the issue of exhaustion"
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No. 02 Civ. 9981 (RWS).
February 23, 2006
APPEARANCES:
RICHARD COLE, #93-R-0865 Plaintiff Pro Se, Wende Correctional Facility NY.
HONORABLE ELIOT SPITZER, Attorney General of the State of New York, Attorneys for Defendant, New York, NY, MARIA BAROUS HARTOFILIS, ESQ., Assistant Attorney General Of Counsel.
OPINION
Defendant Doctor Felicitas Miraflor ("Dr. Miraflor"), staff physician at Otisville Correctional Facility ("Otisville"), an employee of the New York State Department of Correctional Services ("DOCS"), has moved pursuant to Fed.R.Civ.P. 12(b) (6) to dismiss the complaint of plaintiff pro se Richard Cole ("Cole" or the "Plaintiff") alleging violation of 42 U.S.C. § 1983 and seeking compensatory damages for alleged deliberate indifference to his serious medical needs by Dr. Miraflor. For the reasons set forth below, the motion is granted.
Prior Proceedings
On March 26, 2002, this Court dismissed Cole's action against Dr. Miraflor, Cole v. Dr. Miraflor, 195 F. Supp. 2d 496 (S.D.N.Y. 2002) without prejudice, based on Cole's failure to exhaust his administrative remedies. On December 18, 2002, Cole filed this action against Dr. Miraflor, involving the same claim raised in his previously dismissed lawsuit. On July 23, 2003, this Court granted the Defendant's motion to dismiss the complaint, with prejudice, pursuant to Rule 12(b) (1) of the Fed.R.Civ.P., based on Cole's failure to exhaust his administrative remedies. See Cole v. Miraflor, No. 02 Civ. 9981 (RWS), 2003 U.S. Dist. LEXIS 12641 (S.D.N.Y. July 28, 2003) (holding "failure to file a timely grievance constitutes failure to exhaust administrative remedies as required by the PLRA"). While Defendant moved both under 12(b) (6) and 12(b) (1), the Court expressly evaluated the evidence under 12(b) (1). The Plaintiff appealed the decision to the United States Court of Appeals for the Second Circuit. The Defendant moved to remand the appeal to the district court so that it may consider Defendant's motion to dismiss, pursuant to Fed.R.Civ.P. 12(b) (6), in light of the Second Circuit's August 2004 decisions addressing the exhaustion requirement of 42 U.S.C. § 1997e(a) and to consider any other issues properly raised. The Second Circuit granted Defendant's motion and remanded to the district court for further proceedings.
The instant motion was marked fully submitted on October 26, 2005.
The Allegations Against Dr. Miraflor
Cole has alleged that in or about November 1995, during his incarceration at Otisville, the medical professionals at the facility, including Dr. Miraflor, refused to provide him with adequate medical treatment for a back injury he had sustained during the late 1970's. See Complaint, pp. 2-3. In addition, he claims that the medical professionals at Otisville, specifically Dr. Miraflor, refused to provide him with a medical restriction/exemption which would have permitted him to sleep in the bottom bunk rather than the top bunk. Id. at p. 3. The complaint alleges that Dr. Miraflor knew of and disregarded Cole's chronic and disabling back injury. Id. at p. 5. Based on the foregoing, Cole claims that Dr. Miraflor acted with deliberate indifference to his severe medical condition. Id.
Prior to this Court's earlier opinion, Cole did not file a grievance regarding the allegations contained in his complaint and consequently, never appealed any grievances to DOCS' Central Office Review Committee ("CORC") for final resolution. See Plaintiff's August 16, 2002 correspondence to the Court annexed to Defendant's Memorandum of Law in Support as Exhibit A.
Cole filed a grievance after his prior lawsuit was dismissed. This grievance was rejected as untimely. See April 25, 2002 IGRC decision, annexed as Exhibit A to Cole's August 16, 2002 correspondence to the Court. Cole appealed the rejection of his untimely grievance to the superintendent who affirmed the decision. See Decision affirming denial of grievance, annexed as Exhibit B to Plaintiff's August 16, 2002 correspondence. DOCS found the grievance untimely on the grounds that Plaintiff failed to provide mitigating circumstances which would warrant the filing of a grievance seven years after the incident. Id. The decision not to accept the untimely grievance was also affirmed by CORC. See May 3, 2002 Memorandum to Superintendent Donnelly and May 23, 2002 correspondence to Cole from Thomas G. Eagen, Director, Inmate Grievance Program, annexed to Defendant's Memorandum of Law in Support as Exhibit B.
Standard Of Review For A 12(b) (6) Motion To Dismiss The Complaint
A motion to dismiss pursuant to Rule 12 must be denied "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). For the purposes of a Rule 12 motion, all well pleaded allegations are accepted as true, and all inferences are drawn in favor of the pleader. Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993).
"The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974)). In other words, "'the office of a motion to dismiss is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'"Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of New York, 375 F.3d 168, 176 (2d Cir. 2004) (quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980)). Dismissal is only appropriate when "it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him or her to relief." Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000); accord Eternity Global Master Fund, 375 F.3d at 176-77.
The Court may consider outside documents which are integral to the complaint regardless of whether attached to the complaint, so long as the pleader has notice of them or refers to them. See Schnall v. Marine Midland Bank, 225 F.3d 263, 266 (2d Cir. 2000); Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001). Because the exhaustion issue is an integral part of a prisoner's claim, the Court may refer to documents outside of the complaint on a 12(b) (6) motion in determining whether a plaintiff exhausted his administrative remedies. See Martinez v. Wilson, 186 F. Supp. 2d 353, 355 (S.D.N.Y. 2002).
Failure To Exhaust Administrative Remedies
The Prisoner Litigation Reform Act of 1995 (" PLRA") mandates exhaustion by prisoners of all administrative remedies before bringing an action regarding prison conditions. See 42 U.S.C. § 1997e(a). Specifically, the PLRA 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." The United States Supreme Court has held that the PLRA "exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances of particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 992 (2002).
The Supreme Court explained the reason for strict compliance with the exhaustion requirement:
Beyond doubt, Congress enacted § 1997e(a) to reduce the quantity and improve the quality of prisoner suits; to this purpose, Congress afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case. In some instances, corrective action taken in response to an inmate's grievance might improve prison administration and satisfy the inmate, thereby obviating the need for litigation. Booth, 532 U.S. at 737. In other instances, the internal review might "filter out some frivolous claims." Ibid. And for cases ultimately brought to court, adjudication could be facilitated by an administrative record that clarifies the contours of the controversy. See ibid.; see also [McCarthy v. Madigan, 503 U.S. 140, 146 (1992)].Porter, 534 U.S. at 524-25. "[C]ourts have interpreted the provision to require complete exhaustion in accordance with institutional procedures." Graham v. Cochran, No. 96 Civ. 6166 (LTS) (RLE), 2001 U.S. Dist. LEXIS 11584, at *11-12 (S.D.N.Y. Aug. 3, 2001) (citations omitted) (granting summary judgment where prisoner failed to appeal to the CORC); Petit, 2000 U.S. Dist. LEXIS 3536, at *2-3 (holding prisoner who only partially complied with the grievance procedures failed to exhaust his administrative remedies); Santiago v. Meinsen, 89 F. Supp. 2d 435 (S.D.N.Y. 2000) (holding that prisoners must challenge the conditions of their confinement through the highest level of available administrative avenues prior to filing suit).
In New York, inmates can file internal grievances on practically any issue affecting their confinement. See N.Y. Correct. Law § 139 (authorizing inmates to file grievances). DOCS has established a grievance program with specific procedures which must be followed in order for a prisoner to exhaust his administrative remedies. Sulton v. Greiner, No. 00 Civ. 0727 (RWS) 2000 U.S. Dist. LEXIS 17887, at *7, (S.D.N.Y. Dec. 11, 2000); see also Petit v. Bender, No. 99 Civ. 0969 (SHS), 2000 U.S. Dist. LEXIS 3536, at *6-8, (S.D.N.Y. Mar. 22, 2000).
Several courts have held that failure to file a timely grievance constitutes failure to exhaust administrative remedies as required by the PLRA. See Patterson v. Goord, No. 02 Civ. 759 (JSM), 2002 U.S. Dist. LEXIS 22482, at *3 (S.D.N.Y. Nov. 21, 2002) (in case where previous action was voluntarily dismissed by plaintiff in order for him to exhaust his administrative remedies, court held that "since plaintiff had attempted to file a grievance and the appropriate prison officials have found that there are no mitigating circumstances that would permit him to file an untimely grievance, it is appropriate to dismiss the new action with prejudice."). Accord, Pozo v. McCaughtry, 286 F.3d 1022, 1023 (7th Cir. 2002); Smith v. Goord, No. 99 Civ. 4948 (JSM), 99 Civ. 10432 (JSM), 2000 U.S. Dist. LEXIS 2569, at *2 (S.D.N.Y. Mar. 9, 2000) (dismissing action where plaintiff filed a timely grievance but because of untimely appeal could not satisfy exhaustion requirement); Byas v. State of New York, No. 99 Civ. 1673 (NRB), 2002 U.S. Dist. LEXIS 13072, at *11 (S.D.N.Y. June 17, 2002) ("[T]he fact that the time for seeking administrative relief has expired, even on the unusual facts of this case, does not excuse exhaustion.").
In this case, Cole has again brought an Eighth Amendment claim alleging inadequate medical treatment by Dr. Miraflor. This claim falls within the exhaustion requirement. See Porter, 534 U.S. at 532 (exhaustion requirement applies to all inmate suits about prison life, whether they allege excessive force or some other wrong).
Although Cole has alleged that he exhausted his administrative remedies, an investigation conducted by the Office of the Attorney General revealed that he did not grieve any of the issues raised in his complaint. See Complaint, p. 1. Cole attempted to file a grievance after his prior lawsuit was dismissed; however, he admits that the grievance was rejected as untimely. See Exhibit A to Plaintiff's August 16, 2002 correspondence to the Court. DOCS would not accept the late grievance since Cole failed to provide mitigating circumstances which would warrant the filing of a grievance seven years after the incident. See Exhibit B to Plaintiff's August 16, 2002 correspondence. Cole appealed that denial to the superintendent and CORC, the third and final step in the IGP. The rejection of Cole's untimely grievance was affirmed at both levels. Id.; see also May 3, 2002 Memorandum to Superintendent Donnelly and May 23, 2002 correspondence to Cole from Thomas G. Eagen, Director, Inmate Grievance Program. In addition, CORC has no record of Cole having filed any other grievance regarding the allegations raised in the complaint, which is necessary for exhaustion. See CORC printouts, annexed to Defendant's Memorandum of Law as Exhibit C.
In order to have exhausted his administrative remedies, Cole's grievance had to initially be filed with the grievance clerk within fourteen days of the alleged occurrence. See 7 N.Y.C.R.R. § 701.7(a) (1). Although Cole attempted to file a grievance in April 2002, seven years after the alleged incident, after this Court dismissed his previous complaint for failure to exhaust his administrative remedies, it was within the IGP supervisor's discretion to deny the grievance based on its untimeliness and Plaintiff's failure to offer acceptable mitigating circumstances. Id. As explained recently by this Court, DOCS' determination that mitigating circumstances are insufficient to justify the late filing of a grievance is conclusive on the issue of exhaustion,
Plaintiff has already filed a grievance in the course of the lawsuit, and prison officials have ruled that mitigating circumstances do not exist to permit plaintiff to file an untimely grievance. Thus, nothing would be gained from a dismissal without prejudice. [Citations omitted].Byas v. State of New York, No. 99 Civ. 1673 (NRB), 2002 U.S. Dist. LEXIS 13072, at *11 n. 5 (S.D.N.Y. June 17, 2002) (dismissing action with prejudice for failure to exhaust); see also Patterson, 2002 U.S. Dist. LEXIS 22482, at *3.
Cole has recognized that the grievance he attempted to file, seven years after the alleged incident, and after his prior lawsuit was dismissed, was not accepted by DOCS and was rejected as untimely. See Exhibit A to Defendant's Memorandum; see also, Plaintiff's Affidavit Opposing Defendant's Motion, § 2. Cole appealed the decision not to accept his untimely grievance to the superintendent and to CORC and the rejection was affirmed at both levels. Id.; see also Exhibit B to Defendant's Memorandum. In addition, other than the rejected, untimely grievance, Cole did not file any other grievance regarding the allegations raised in the complaint which reached a final result by being appealed to CORC. See Exhibit C to Defendant's Memorandum.
Cole's appeal of the rejection of his attempt to file a grievance, seven years after the incident complained of, does not relieve him of his mandatory obligation to exhaust his administrative remedies on the claim which is at issue in this lawsuit. See Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983 (2002); Neal v. Goord, 267 F.3d 116 (2d Cir. 2001). Contrary to Cole's claim that administrative remedies were no longer available to him because DOCS did not find mitigating circumstances to excuse his late grievance, see Plaintiff's Opp. Memo. p. 14, the very fact that DOCS' policies provide for the filing of late grievances where there are mitigating circumstances, demonstrates that administrative remedies were available to Plaintiff.
Furthermore, Cole's decision to pursue administrative remedies after the administration deadlines had passed does not satisfy the PLRA's exhaustion requirement. See Patterson, 2002 U.S. Dist. LEXIS 22482, at *3; Byas, 2002 U.S. Dist. LEXIS 13072, at *11; Smith v. Goord, 2000 U.S. Dist. LEXIS 2569, at *2.
Recent decisions by the Second Circuit holding that under certain circumstances the exhaustion requirement could be excused, are not applicable here. See Ortiz v. McBride, 380 F.3d 649, 663 (2d Cir. 2004); Giano v. Goord, 380 F.3d 670 (2d Cir. 2004); Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004); Abney v. McGinnis, 380 F.3d 663, 669 (2d Cir. 2004);Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004); see also Scott v. Gardner, 344 F. Supp. 2d 421, 425 (S.D.N.Y. 2004). Cole's failure to grieve in this case will not be excused when he admits that he did not file any internal grievance following his medical visits to Dr. Miraflor in 1995 and 1996 "despite familiarity with the availability of such remedy." See Cole v. Miraflor, 195 F. Supp. 2d 496, 499 (S.D.N.Y. 2002). The facts in this case do not establish any "justification" for his admitted failure to grieve and exhaust. See Giano, 380 F.3d at 675-78. Cole does not allege that he was inhibited by prison officials from utilizing the grievance procedure, see Ziemba v. Wezner, 366 F.3d 161, 163-64 (2d Cir. 2004), or that administrative remedies were not "available" to him, see Abney, 380 F.3d at 667. In a similar case in which an inmate acknowledged that he took "no action" to pursue available administrative remedies, and there was no "justification," the Second Circuit dismissed the complaint with prejudice. See Berry v. Kerik, 366 F.3d 85 (2d Cir. 2004). Therefore, this Court's July 2003 determination in this case is not at odds with the Second Circuit's August 2004 decisions. See Cole, 2003 U.S. Dist. LEXIS 12641.
Cole has contended that he was not required to grieve since he was only seeking monetary damages, see Plaintiff's Opp. Memo. pp. 7-8, 10-11, a contention that has been rejected by the Supreme Court. See Booth v. Churner, 532 U.S. 731, 121 S. Ct. 983 (2002) (holding that as long as other forms of relief are obtainable through administrative channels, the provision is applicable even to suits seeking relief, such as money damages, that may not be available in prison administrative proceedings). Cole also contends that he "could not readily distinguish whether his personal request involved a prison condition, or was a discrete incident, not subject to the grievance process." See Plaintiff's Opp. Memo. p. 9. As noted, the Supreme Court has held that "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." Porter, 534 U.S. at 532. This Court previously recognized that the exhaustion requirement applies to cases filed on or after the April 26, 1996 effective date of the PLRA, even if the claims on which the complaints are based accrued prior to the effective date. See Cole v. Dr. Miraflor, 2003 U.S. Dist. LEXIS 12641 (S.D.N.Y. 2003). Since Cole filed his complaint on December 18, 2002, it is covered by the PLRA's exhaustion requirement.
Further, at the time Cole's claim accrued, in 1995 or 1997, the Second Circuit had not made the distinction between individual incidents and conditions which affect the entire prison inPorter v. Willette, 224 F.3d 95 (2d Cir. 2000), which he relies on.
The August 2004 Second Circuit cases Cole has cited in his opposition papers do not contemplate a situation where an inmate does file a grievance, albeit untimely. The Second Circuit's holding in Giano v. Goord, on which Cole relies, that there are special circumstances in which a prisoner's failure to exhaust may have been justified, appears to apply in those situations where inmates have not filed a grievance. See Giano, 380 F.3d 670 (2d Cir. 2004) (plaintiff did not file a grievance because he interpreted DOCS regulations to mean that his only administrative recourse was to appeal his disciplinary conviction).
As this action was dismissed in 2002 for failure to exhaust and Cole was given an opportunity to exhaust but failed to do so,see Cole v. Dr. Miraflor, 195 F. Supp. 2d 496, 2002 U.S. Dist. LEXIS 4975 (S.D.N.Y. 2002), this action is dismissed, with prejudice, pursuant to 42 U.S.C. § 1997e(a) for failure to exhaust administrative remedies. See Cole v. Dr. Miraflor, 2003 U.S. Dist. LEXIS 12641 (S.D.N.Y. 2003).
The Statute of Limitations Bars This Action
The statute of limitations for civil rights actions commenced in New York under 42 U.S.C. § 1983 is the residual personal injury statute of NYCPLR § 214(5) which provides that actions must be commenced within three years. Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir. 1997). The cause of action accrues, and the limitations clock starts running when the plaintiff knows or has reason to know of the injury giving rise to the claim. Id. Where the plaintiff is a pro se prisoner, the clock stops running when the plaintiff delivers the complaint to prison officials for mailing to the Court. Dory v. Ryan, 999 F.2d 679, 682 (2d Cir. 1993), modified on other grounds, 25 F.3d 81 (2d Cir. 1994).
The Court has the authority to dismiss this action on statute of limitations grounds even if the case must also be dismissed for failure to exhaust. See 42 U.S.C. § 1997e(c) (2).
Even if, as Cole has contended, one of New York's tolling provisions were to apply to the statute of limitations in this case, his claim against Dr. Miraflor would be time-barred. "In § 1983 actions filed in New York, 'federal courts [are] obligated not only to apply the analogous New York statute of limitations to . . . federal constitutional claims, but also to apply the New York rule for tolling that statute of limitations.'" Jewell v. County of Nassau, 917 F.2d 738, 740 (2d Cir. 1990), citingBoard of Regents v. Tomanio, 446 U.S. 478, 465, 100 S.Ct. 1790 (1980). New York has codified the circumstances under which a limitations period may be tolled which include, inter alia, the extension of the statute of limitations for six months after an action has been terminated, if the action was originally timely commenced. See N.Y. CPLR § 205(a).
Cole's initial complaint was dismissed by order of this Court on March 26, 2002, without prejudice, based on Plaintiff's failure to exhaust his administrative remedies. Since his action was "terminated" for purposes of § 205(a) of the CPLR on March 26, 2002, the six-month tolling provision expired on September 26, 2002. However, Plaintiff did not commence this action until November 15, 2002, approximately two months after the six month tolling provision had expired.
The action was "terminated" on March 26, 2002, when the Court issued its decision dismissing the action. The date the judgment was entered was merely "an obligatory ministerial act" of the court clerk. See Greenblatt v. New York Surety Company, 171 Misc.2d 126, 128, 653 N.Y.S.2d;833, 834 (Sup.Ct. N.Y. Co. 1996); see also Brumel v. Hartford Fire Insurance Company, 158 Misc. 311, 285 N.Y.S. 611 (City Court, N.Y. Co. 1936) (court held that order of dismissal must be regarded as the termination of the action since the subsequent judgment entered was an optional procedure and was merely a pro forma step to obtain costs which added nothing to the decision of the court contained in the order of dismissal that the action was terminated and at an end).
Although this complaint reflects that it was filed with the Court on December 18, 2002, because Plaintiff is proceeding pro se, the complaint is deemed to have been filed on November 15, 2002, the date received by the Pro Se Office. See Smith v. Henderson, 137 F. Supp. 2d 313, 317 n. 2 (S.D.N.Y. 2001).
Although Cole submitted a request for permission to file a grievance on April 18, 2002, it was rejected as untimely on April 25, 2002 and his appeal of the denial was denied by the superintendent and DOCS' CORC in May 2002. Cole did not file this complaint until November 15, 2002. Therefore, even if Cole's initial action was commenced in a timely manner, once it was dismissed or terminated, he only had six months in which to file a new action. See Allaway v. Superintendent McGinnis, 362 F. Supp. 2d 390 (W.D.N.Y. 2005) (Court found statute of limitations did not bar plaintiff's complaint, since plaintiff's subsequent action was filed five months after it was dismissed, without prejudice to afford plaintiff opportunity to exhaust his administrative remedies).
To the extent that Cole seeks to apply equitable tolling, he has neither pleaded or asserted any of the elements required for the doctrine of equitable estoppel. See Plaintiff's Memorandum of Law in Opposition to Defendant's Motion, pp. 14-19. Equitable tolling, a doctrine that only "applies in the 'rare and exceptional circumstance,'" (internal quotations omitted), has been granted only when the plaintiff pleads with particularity "(1) the wrongful concealment by the defendant of its actions; (2) the failure by the plaintiff to discover the operative facts underlying the action within the limitations period, and (3) the plaintiff's due diligence to discover the facts." Moore v. The City of New York, 2003 U.S. Dist. LEXIS 4271 (S.D.N.Y. March 17, 2003) (Lynch, J.), citing Griffin v. McNiff, 744 F. Supp. 1237, 1256 (S.D.N.Y. 1990), aff'd, 996 F.2d 303 (2d Cir. 1993) (quoting Donahue v. Pendleton Woolen Mills, Inc., 633 F. Supp. 1423, 1443 (S.D.N.Y. 1986)); see also Grullon v. Reid, 2000 U.S. Dist. LEXIS 6883 (S.D.N.Y. 2000). Since none of the enumerated grounds for equitable tolling apply in this case, there is no tolling provision which saves Plaintiff's action from being barred by the statute of limitations. Accordingly, this action is dismissed.
Conclusion
For the reasons set forth above, the complaint is dismissed with prejudice.
It is so ordered.