Opinion
01 Civ. 8994 (RCC) (KNF)
October 30, 2002
REPORT and RECOMMENDATION
TO THE HONORABLE RICHARD C. CASEY, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
In this action, brought pursuant to 42 U.S.C. § 1983, the defendants have made a motion that the plaintiffs complaint be dismissed, pursuant to Fed.R.Civ.P. 12(b)(1) and (6) because:
(a) plaintiff failed to exhaust available administrative remedies prior to initiating this action as he is required to do, pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e; (b) the New York State Department of Correctional Services is immune from suit pursuant to the Eleventh Amendment to the Constitution; (c) plaintiff failed to allege any personal involvement by defendant Dr. Henry Mamis in the alleged deprivation of plaintiffs constitutional rights; and (d) plaintiff failed to serve defendant Dr. Norman Selwin with the summons and complaint timely, as required by Fed.R.Civ.P. 4(m). Plaintiff has not opposed the motion.
II. BACKGROUND
Plaintiff Calvin Davis ("Davis") alleges in his complaint that he suffers from a seizure disorder, which is documented in the medical records maintained at the Green Haven Correctional Facility. That is the facility where he was being held when this action was initiated. The complaint explains that on numerous occasions, while confined to his cell, Davis has experienced a seizure and fallen from his bed, and has hit his head and face. As a consequence, Davis maintains, he has received cuts above his eye and on his forehead, which had to be sutured. Davis contends he filed a grievance concerning this predicament, but was informed that the matter was not within the purview of the grievance committee. Through the instant action, Davis seeks damages for injuries he alleges were caused by the defendants' negligence and their deliberate indifference to his medical needs demonstrated, Davis contends, by the defendants' failure to change his sleeping accommodations at the Green Haven Correctional Facility.
On June 5, 2002, the defendants filed the instant motion, a memorandum of law in support of the motion and an affidavit subscribed by Thomas G. Eagen ("Eagen"), Director of the Inmate Grievance Program of the New York State Department of Correctional Services. In the affidavit, Eagen explains that he is responsible for all aspects of the administrative functions of the Inmate Grievance Program, including supervising the maintenance of grievance records. Eagen's affidavit also explains the functions of an entity known as the Central Office Review Committee ("CORC"). Among CORC's responsibilities is to review decisions on grievance complaints rendered at the correctional facility level, and to issue a final administrative determination on these grievance complaints. Eagen reports that he caused a search of the records maintained by his office to be performed respecting Davis. As a result of that search, nothing was found indicating that Davis appealed a grievance to CORC regarding medical care he received at Green Haven Correctional Facility or concerning any other matter. Eagen explains, in his affidavit, that an issue concerning medical care or indifference to the medical needs of an inmate is a grievable matter, pursuant to New York State Department of Correctional Services Directive No. 4040. Since the search of the records maintained by Eagen's office failed to reveal that plaintiff has filed an appeal from any facility-level grievance determination to CORC, Eagen concluded that plaintiff has not exhausted the administrative remedies made available to him by the prison system to challenge the medical care he received at the Green Haven Correctional Facility.
After the defendants filed the instant motion, by Order dated June 27, 2002, the Court directed Davis to serve and file, on or before July 29, 2002, a response in opposition to the defendants' motion. On August 9, 2002, the Court received a letter from Davis dated July 31, 2002. In that letter, Davis explained that he had been transferred from Green Haven Correctional Facility to Auburn Correctional Facility. Davis explained further that, due to the transfer from one correctional facility to another, he needed additional time to respond to the defendants' outstanding motion. Plaintiff requested that he be granted 60 days to respond to the motion. The Court granted Davis' application, and he was directed to serve and file his response to the instant motion on or before October 1, 2002. As of the date of this report and recommendation, the docket sheet maintained for this action, by the Clerk of Court, indicates that Davis has not filed a response to the defendants' motion to dismiss his complaint. Moreover, the docket sheet also indicates that defendant Dr. Norman Selwin was not served with a copy of the summons and complaint, although this action was initiated on October 9, 2001.
III. DISCUSSION
Failure to Exhaust Administrative Remedies
When a § 1983 action is brought by a prisoner, the court's subject matter jurisdiction is constrained by 42 U.S.C. § 1997e, as amended by the Prison Litigation Reform Act. 42 U.S.C. § 1997e(a) provides, in relevant part:
No 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.
"Failure to exhaust administrative remedies permits a court to dismiss the action because no subject matter jurisdiction exists." DiLaura v. Power Authority of State of N.Y., 982 F.2d 73, 79 (2d Cir. 1992). The requirement set forth at 42 U.S.C. § 1997e(a), that a prisoner exhaust all administrative remedies available to him before the prisoner may properly commence an action under 42 U.S.C. § 1983 concerning prison conditions, "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, 531, 122 S.Ct. 983, 992 (2002).
Defendants contend that plaintiff did not exhaust the administrative remedies available to him, see 7 N.Y.C.R.R. § 701, et seq., because, although plaintiff alleges that he filed a grievance concerning the subject matter of this action, the records maintained by the New York State Department of Correctional Services do not indicate that plaintiff filed an appeal with CORC, the administrative entity that is able to render a final determination on all inmate grievances. As noted earlier in this writing, plaintiff failed to file a response to the defendants' motion to dismiss his complaint. Therefore, the record before the Court is barren of any information from plaintiff that refutes the defendants' allegation that he failed to exhaust the administrative remedies made available to him by filing a grievance appeal with CORC.
Under the circumstances, the court is warranted in granting the defendants' motion to dismiss the complaint for failure to exhaust available administrative remedies. However, when a complaint is dismissed because a prisoner has not exhausted available administrative remedies, the complaint should be dismissed without prejudice. See Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir. 2002).
Eleventh Amendment Immunity
The Eleventh Amendment to the Constitution bars suits in a court of the United States by a citizen of the state against that state or one of its agents absent its consent to such a suit or an express statutory waiver of immunity. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114 (1996). An action brought against the New York State Department of Correctional Services or one of its employees, in the employee's official capacity, is a suit against the state. See Shimon v. Dep't of Correctional Servs. for the State of N.Y., No. 93 Civ. 3144, 1996 WL 15688, at *2 (S.D.N.Y. Jan. 17, 1996). The State of New York has not consented to suit in federal court. See Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 38-40 (2d Cir. 1977). Furthermore, the Supreme Court has advised that "neither a State nor its officials acting in their official capacities are 'persons' under § 1983." Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312 (1989).
As a consequence of the above, plaintiffs claims against the New York State Department of Correctional Services and Dr. Henry Mamis (to the extent the action is brought against Dr. Mamis in his official capacity) seeking to recover monetary damages must be dismissed, with prejudice, for failure to state a claim upon which relief may be granted. See 42 U.S.C. § 1997e(c); Miller v. New York State Dep't of Corrections, 217 F. Supp.2d 391, 393 (S.D.N.Y. 2002). Furthermore, in this circuit, personal involvement of a defendant in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983. See McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977) (citing Mukmuk v. Comm'r of Dep't of Correctional Servs., 529 F.2d 272, 275 [2d Cir. 1976]);Johnson v. Newburgh Enlarged School District, 239 F.3d 246, 254 (2d Cir. 2001). A § 1983 complaint must contain allegations that a defendant is "directly and personally responsible for the purported unlawful conduct." Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987) (citing Black v. U.S., 534 F.2d 524, 527-28 [2d Cir. 1976]); see also Lee v. the State of New York Dep't of Correctional Servs., No. 97 Civ. 7112, 1999 WL 673339, at *15 (S.D.N.Y. Aug. 30, 1999).
Inasmuch as Davis' complaint fails to state, with any degree of precision, defendant Dr. Henry Mamis' personal involvement in the alleged constitutional deprivation that Davis suffered, but merely states, in a broad way, that the defendants have violated plaintiffs constitutional rights, Davis has failed to state a claim against Dr. Mamis under § 1983. Accordingly, the court would be warranted in dismissing the complaint against Dr. Mamis on this additional ground.
Failure to Serve Complaint
Rule 4(m) of the Federal Rules of Civil Procedure, in its most pertinent part, provides:
If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
"Among Federal courts, there is virtual unanimity that dismissal is mandatory if a defendant is not served [with a summons and complaint] within the time frame [set by Fed.R.Civ.P. 4(m),] unless the plaintiff can show 'good cause' or 'excusable neglect' for the delay." McKibben v. Credit Lyonnais, No. 98 Civ. 3358, 1999 WL 604883, at *2 (S.D.N.Y. Aug. 10, 1999); see also Frasca v. United States, 921 F.2d 450, 453 (2d Cir. 1990); Valentin v. Comm'r of Social Servs., No. 99 Civ. 40856, 2000 WL 1727710, at *1-2 (S.D.N.Y. Nov. 21, 2000); Ogbo v. New York State Dep't of Taxation and Fin., No. 99 Civ. 9387, 2000 WL 1273840, at *2 (S.D.N.Y. Sept. 6, 2000).
A litigant's pro se status does not, without more, establish good cause for relieving the litigant of the obligation of complying with the dictates of Fed.R.Civ.P. 4(m). See Gaines v. Gaston, 182 F.R.D. 430 (S.D.N.Y. 1998); Amnay v. Del Labs, 117 F. Supp.2d 283, 285 (E.D.N.Y. 2000). Good cause or excusable neglect is typically found only in those exceptional circumstances where a plaintiffs failure to effect service of process in a timely manner has been occasioned by circumstances beyond the plaintiffs control. See McKibben, 1999 WL 604883, at *3. Three factors are generally considered by courts in determining whether good cause or excusable neglect exists for a plaintiffs failure to meet the 120-day limit for service of process: (1) whether the delay in service was a result of mere inadvertence, or whether there has been a reasonable effort to effect service; (2) whether the defendant has been prejudiced; and (3) whether the plaintiff has moved under Fed.R.Civ.P. 6(b) for an enlargement of time in which to effect service. See Shuster v. Oppleman, No. 96 Civ. 1689, 1999 WL 9845, at *3 (S.D.N.Y. Jan. 11, 1999).
Defendants contend that plaintiff has failed to serve the summons and complaint upon defendant Dr. Norman Selwin, and the docket sheet maintained for this action, by the Clerk of Court, supports the defendants' contention. Since plaintiff has determined not to file a response to the instant motion, he has not presented any evidence to the Court to establish that he served the summons and complaint on Dr. Selwin timely. Therefore, the Court finds that, in the absence of any proof that personal jurisdiction over Dr. Selwin has been obtained through service of the summons and complaint timely, the complaint should be dismissed against him, without prejudice.
IV. RECOMMENDATION
For the reasons set forth above, defendants' motion should be granted. With respect to defendants New York State Department of Correctional Services and Dr. Henry Mamis, the complaint should be dismissed with prejudice. In all other respects, the complaint should be dismissed without prejudice.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636 (b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Richard C. Casey, 500 Pearl Street, Room 1950, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Casey. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (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, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).