Opinion
98 Civ. 1674 (RWS)
January 20, 2000
ROLANDO CORONADO, Plaintiff Pro Se.
ELIOT SPITZER, Attorney General of the State of New York, By: EFREM Z. FISCHER, Assistant Attorney General Of Counsel, for Defendants.
OPINION
Defendants George E. Pataki, Glenn S. Goord, Christopher P. Artuz, and George Schneider ("Defendants") have moved, pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss the complaint of pro se plaintiff Rolando Coronado ("Coronado"). For the reasons set forth below, the motion will be granted.
Background and Prior Proceedings
Coronado alleges in his complaint that on June 30, 1997, while in the recreation yard at Green Haven Correctional Facility in Stormville, New York, he was attacked by several inmates while two corrections officers did nothing to prevent the attack. As a result, Coronado was stabbed in the back seven times, sustaining a punctured lung which required hospitalization for several weeks.
Coronado alleges that because the sergeant of security failed to supervise the door to the recreation yard, prisoners were able to smuggle weapons into the yard. Coronado further alleges that the Superintendent and Deputy Superintendent of Security should have installed metal detectors because of alleged ongoing threats of violence. Coronado also claims that Defendants should have classified him as "vulnerable to attacks" because he had been stabbed on October 1, 1986, July 7, 1988, and September 8, 1988. Finally, Coronado claims that Governor George Pataki allowed the prisons in New York State to become overcrowded with prisoners and understaffed by guards.
Coronado seeks declaratory and injunctive relief and damages for violation of his Eighth and Fourteenth Amendment rights.
The instant motion was filed on July 13, 1999. Answer and reply papers were received through October 13, 1999, at which point the motion was deemed fully submitted.
Discussion
In reviewing a motion to dismiss under Rule 12(b)(6), a court must "accept as true the factual allegations of the complaint, and draw all inferences in favor of the pleader." Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993) (citing IUE AFL-CIO Pension Fund v. Hermann, 9 F.3d 1049, 1052 (2d Cir. 1993)). Dismissal is warranted only when "the plaintiff cannot recover on the facts he has alleged." Id. Furthermore, a pro se complaint is given liberal construction, particularly where civil rights violations are alleged. See George v. Lorenzo, No. 98 Civ. 0769 (LAP), 1999 WL 397473, at *1 (S.D.N.Y. June 15, 1999); Cruz v. Jackson, No. 94 Civ. 2600 (RWS), 1997 WL 45348, at *3 (S.D.N.Y. Feb. 5, 1997) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972); Morgan v. LaVallee, 526 F.2d 221, 224 (2d Cir. 1975)).
I. Coronado Has Failed To Exhaust His Administrative Remedies
Defendants first allege that Coronado failed to exhaust his administrative remedies prior to filing suit in federal court, thereby mandating dismissal of this action. Coronado does not dispute that did not lodge an administrative grievance claim prior to filing this action in federal court. Apparently, he believed that it was not a grievable matter due to the seriousness of the attack. He also maintains that he is not required to exhaust his administrative remedies because he is seeking relief — damages — which are unavailable to him through the grievance procedure.
After the filing of Defendants' instant motion to dismiss, however, Coronado filed a grievance claim with the Inmate Grievance Records Committee at Attica Correctional Facility, where Coronado is currently incarcerated. The grievance was denied for failure to file in a timely fashion, i.e. within 14 days of the alleged occurrence. See 7 N.Y.C.R.R. 701.7(a)(1). This denial thereby served to exhaust Coronado's administrative remedies. Defendants maintain, however, that exhaustion of administrative remedies for failure to file in a timely fashion cannot be used to circumvent the requirement of administrative exhaustion.
With regard to Coronado's claim that he is not required to exhaust his administrative remedies when he is seeking damages, this Court has recently held that even where a prisoner seeks damages not recoverable under an established grievance procedure, the prisoner must still exhaust his administrative remedies before seeking relief in federal court. See Edney v. Karrigan, No. 99 Civ. 1675 (RWS), 1999 WL 958921, at *4 (S.D.N.Y. Oct. 14, 1999).
The question remains, however, whether failure to file a timely administrative grievance claim — thereby barring such claim — suffices to exhaust administrative remedies for purposes of the Prisoner Litigation Reform Act, 42 U.S.C. § 1997e(a). Apparently, neither the Second Circuit nor any courts in this District has yet addressed this question. The Fifth Circuit has noted, however, that "[w]ithout the prospect of a dismissal with prejudice, a prisoner could evade the exhaustion requirement by filing no administrative grievance or by intentionally filing an untimely one, thereby foreclosing administrative remedies and gaining access to a federal forum without exhausting administrative remedies." Marsh v. Jones, 53 F.3d 707, 710 (5th Cir. 1995). Likewise, the Sixth Circuit has remarked that where "inmates have both notice that exhaustion is required and a reasonable opportunity to file complaints, it would be contrary to Congress' intent in enacting the PLRA to allow inmates to bypass the exhaustion requirement by declining to file administrative complaints and then claiming that administrative remedies are time-barred and thus not available." Wright v. Morris, 111 F.3d 414, 418 n. 3 (6th Cir. 1997).
Fortunately, this question need not be resolved here. 7 N YC.R.R. § 701.7(a)(1) states that "[e]xceptions to [the 14 day] time limit may be approved by the [Inmate Grievance Program] supervisor based on mitigating circumstances (e.g., attempts to resolve informally by the inmate, referrals back to the [Inmate Grievance Program] by the courts, etc.)." The appropriate course of action, then, is to dismiss this action without prejudice, permitting Coronado to seek an exception to the 14 day time limit.
An exception would seem to be warranted in this instance. First, Coronado apparently spent several weeks in the hospital recovering from the attack. Second, as indicated above, he was under the impression that it was not necessary to file a grievance due to the seriousness of the incident.
Conclusion
For the reasons set forth above, Coronado's complaint is dismissed without prejudice.It is so ordered.