Opinion
No. 02-CV-6430
June 23, 2003
Jake Harper, Esq., New York, NY, For plaintiff.
Gary M. Levine, Esq., N.Y.S. Attorney General's Office, Rochester, NY, For defendants.
DECISION AND ORDER
I. INTRODUCTION
This is an action pursuant to 42 U.S.C. § 1983, brought by the plaintiff, a former prison inmate, against various employees of the New York State Department of Correctional Services. Now before the Court is defendants' motion [# 2] to dismiss pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons stated below, the motion is granted in part and denied in part.
II. BACKGROUND
Plaintiff William Donahue ("plaintiff") was an inmate at Elmira Correctional Facility ("Elmira") and defendants were employees of the New York State Department of Correctional Services ("DOCS") at Elmira.
A. ALLEGED FACTS
The following are the facts as alleged by the plaintiff. On May 5, 2001, plaintiff wrote to defendant Deputy of Security Ray Doane ("Doane") that other inmates had warned plaintiff that inmate Stephen Fox ("Fox") was "out to get him". Plaintiff indicated that he previously had problems with Fox when they were both housed at another facility, and that Fox was known to be violent. He further stated that he had alerted defendant Sgt. Robert Erickson ("Erickson") of the situation, but Erickson seemed unconcerned. Doane did not send a response to the letter.
On May 16, 2001, during the afternoon mandatory meal, Fox yelled his intentions to harm the plaintiff. Plaintiff informed Erickson about the threats. Erickson told the plaintiff that he would look into it, and instructed the plaintiff to continue with his assigned program.
Later that day, during plaintiff's GED class, Fox attacked plaintiff causing injuries to plaintiff's face. Fox struck plaintiff repeatedly, smashed plaintiff's head against the floor and wall, and tried to jam a pen into the plaintiff's right eye. Plaintiff suffered a bloody nose, a lacerated lower lip, and the entire right side of his face was swollen. Plaintiff was treated at the prison infirmary by defendant Heman Fowler, N.P. ("Fowler") and X-rays and photographs were taken. Dr. Chang Yin ("Chang") reviewed plaintiff's X-rays and found multiple fractures. Infirmary staff, including defendant Diane Holton ("Holton"), treated plaintiff with Tylenol and codeine. They discharged the plaintiff on May 18, 2001.
Plaintiff's complaint and service papers state "Heman Fowler", but defendants' documents state "Herman Fowler".
Plaintiff's complaint states "On 5.18.02, only two days after plaintiff sustained [injuries] . . . plaintiff was discharged from his cell." The Court interpreted the date as a mistake and adjusted the year to conform with the rest of the complaint.
DOCS granted plaintiff a referral for an outside medical consultation on May 17, 2001. Doctors at the State University of New York Hospital in Syracuse, N.Y. examined plaintiff and found:
A. Multiple fractures of the right orbit and right maxillary sinus.
B. Fracture of the ramus of the mandible on the right.
C. Fracture of the right nasal bone.
D. The right interior rectus muscle is slightly swollen but not displaced inferiorly.
E. Mucosal thickening of the frontal sinuses.
Plaintiff claims that these injuries required immediate evaluation and treatment, and that he should not have had to wait four days before being properly treated.
B. PROCEDURAL HISTORY
Plaintiff commenced this action by filing the complaint on August 13, 2002 and submits to the Court two federal claims both arising under 42 U.S.C. § 1983 for violation of his 8th Amendment rights: (1) that defendants Doane and Erickson failed to protect him from Fox; and, (2) that defendants Yin, Fowler, and Holton were deliberately indifferent to his medical needs. Additionally, plaintiff asserts New York State tort law claims ("state claims") for negligence and medical malpractice.
Defendants move for dismissal based on lack of jurisdiction over the subject matter (FED. R. CIV. P 12(b)(1)) and failure to state a claim upon which relief can be granted (FED. R. CIV. P 12(b)(6)). Defendants contend that the Court lacks subject matter jurisdiction over the § 1983 claims, because plaintiff failed to exhaust his administrative remedies before commencing this action, as required by 42 U.S.C. § 1997e(a). Defendants allege that the Court also lacks subject matter jurisdiction over plaintiff's state law tort claims pursuant to New York Corrections Law § 24 ("§ 24").
Finally defendants maintain that plaintiff has failed to state a § 1983 claim against defendant Holton because the complaint purportedly does not allege that Holton was personally involved in the alleged Constitutional deprivations.
On January 27, 2003, the Court issued a motion scheduling order and directed the plaintiff to file a response on or before February 13, 2003. On February 10, 2003, the Court extended the deadline upon the request of the plaintiff with the consent of the defendants and directed that plaintiff file a response on or before March 24, 2003. On March 18, 2003, plaintiff requested a second extension, which the Court granted the extension and directed that plaintiff file a response on or before May 23, 2003. Plaintiff has not submitted a response to the motion. The Court has thoroughly considered the parties' submissions and the entire record in this action.
III. DISCUSSION
When a motion to dismiss is made pursuant to the Federal Rules of Civil Procedure Rule 12(b)(1) for lack of subject matter jurisdiction, as well as Rule 12(b)(6), the court should consider the Rule 12(b)(1) challenge first. Bell v. Hood, 327 U.S. 678, 682 (1946); United States ex rel. Kreindler Kreindler v. United Tech. Corp., 985 F.2d 1148, 1155-1156 (2d Cir. 1993).
A. SUBJECT MATTER JURISDICTION
Under Rule 12(b)(1), a court must dismiss a complaint for "lack of jurisdiction over the subject matter." In considering a motion to dismiss for want of subject matter jurisdiction, the Court must accept as true all material factual allegations in the Complaint and draw all reasonable inferences in favor of the plaintiff. See, Atlantic Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992). However, a court is not confined to the Complaint because "[o]n a motion under [Rule] 12(b)(1) challenging the district court's subject matter jurisdiction, the court may resolve disputed jurisdictional fact issues by reference to evidence outside the pleadings, such as affidavits." Antares Aircraft v. Fed. Republic of Nigeria, 948 F.2d 90, 96 (2d Cir. 1991) (citations omitted), vacated on other grounds, 505 U.S. 1215, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992).
In the instant case, the defendants argue that the Court lacks subject matter jurisdiction because under 42 U.S.C. § 1997e(a), a prisoner may not commence an action until he has exhausted all his administrative remedies. This argument fails on two counts: (1) the PLRA does not affect subject matter jurisdiction; and (2) the attorney's affirmation does not satisfy evidentiary rules of admissibility.
1. EXHAUSTION
As discussed earlier, defendants first contend that the Court lacks subject matter jurisdiction on this case pursuant to the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). Under the PLRA, "[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." It is well settled that,
[i]n New York State, those remedies consist of a three-step review process. Once a grievance is submitted to the inmate grievance resolution committee, (1) the grievance is investigated and reviewed by the IGRC, which is comprised of inmates and DOCS employees; (2) if appealed, the superintendent of the facility reviews the IGRC's determination; and (3) if the superintendent's decision is appealed, the Central Office Review Committee makes the final administrative determination. Only upon exhaustion of these three levels of review may a prisoner seek relief pursuant to § 1983 in federal court.
Reyes v. Punzal, 206 F. Supp.2d 431, 432 (W.D.N.Y. 2002) (citations omitted). Where a plaintiff has failed to comply with 42 U.S.C. § 1997e(a) prior to commencing his lawsuit, the district court should dismiss the action without prejudice. Neal v. Goord, 267 F.3d 116, 123 (2d Cir. 2001), overruled in part on other grounds, Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983 (2002).
Courts in this circuit have reached contrary conclusions as to whether or not the PLRA's exhaustion requirement affects the court's subject matter jurisdiction. Compare, Arnold v. Goetz, 245 F. Supp.2d 527, 531-532 (S.D.N.Y. Feb. 4, 2003) (PLRA's exhaustion requirement is properly assessed as an affirmative defense), with Harris v. Totten, 244 F. Supp.2d 229, 231 (S.D.N.Y. Jan. 31, 2003) ("[W]hen a defendant moves for dismissal on the ground that the plaintiff has failed to exhaust administrative remedies, the defendant is raising a challenge to the court's jurisdiction"). Circuit courts generally recognize that the PLRA is a statute providing an affirmative defense. See, e.g., Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002); Foulk v. Charrier, 262 F.3d 687, 697 (8th Cir. 2001); Jackson v. District of Columbia, 254 F.3d 262, 267 (D.C. Cir. 2001); Massey v. Helman, 196 F.3d 727, 735 (7th Cir. 1999). While the Second Circuit has not expressly ruled on whether the PLRA is an affirmative defense or is jurisdictional, the Circuit Court stated that "a defendant in a prisoner § 1983 suit may . . . assert as an affirmative defense the plaintiff's failure to comply with the PLRA's exhaustion requirements." Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir. 1999). This Court therefore holds that 1997e(a) does not implicate subject matter jurisdiction.
Consequently, plaintiff was not required to affirmatively state in the Complaint that he had exhausted his administrative remedies.
See, FED. R. CIV. P. 8.
2. DEFENDANT"S AFFIRMATION
Assuming arguendo that defendants' motion was properly brought under Rule 12(b)(1), defendants have nonetheless failed to properly support the motion. Defendants rely primarily on the attorney's affirmation that describes a phone conference the counsel had with Sheryl Graubard, Inmate Grievance Supervisor at Elmira, and correspondence that he had with Thomas Eagen, Director of the Inmate Grievance Program for DOCS, which confirmed that plaintiff has not filed grievances or appeals relating to this complaint. The Court cannot accept this as evidence because it is hearsay.
B. STATE TORT CLAIMS
The Court will now consider defendants' 12(b)(1) motion as it pertains to plaintiff's state tort claims. Plaintiffs bring the New York State tort law claims pursuant to 28 U.S.C. § 1367(c) and asks the Court to review these claims under its supplemental jurisdiction. However, as indicated earlier, defendants contend that this Court lacks jurisdiction by virtue of New York Corrections Law § 24.
The relevant parts of the statute are as follows:
1. No civil action shall be brought in any court of the state, except by the attorney general on behalf of the state, against any officer or employee of the department, in his personal capacity, for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties by such officer or employee.
2. Any claim for damages . . . shall be brought and maintained in the court of claims as a claim against the state.
N.Y. CORRECT. LAW § 24 (McKinney 2003) "A federal court, acting as a state court in addressing pendent state law claims, would not have jurisdiction in such an action" because any such claims are a matter for the New York Court of Claims. Farid v. Goord, 200 F. Supp.2d 220, 235 (W.D.N.Y. 2002) (citing Baker v. Coughlin, 77 F.3d 12, 15 (2d Cir. 1996)). The Second Circuit Court of Appeals held that § 24, "by its plain terms, precludes the assertion of claims against corrections officers in any court, including the federal courts." Baker v. Coughlin, 77 F.3d at 15. The Second Circuit has further held that § 24 "shields employees of a state correctional facility from being called upon to personally answer a state law claim for damages based on activities that fall within the scope of the statute." Ierardi v. Sisco, 119 F.3d 183, 186 (2d Cir. 1997) (citations omitted). The purpose of the immunity is to permit corrections officers to "perform the demanding task of maintaining prison safety and security undeterred by the fear of personal liability and vexatious suits". Id., 119 F.3d at 187. (quoting Arteaga v. State, 72 N.Y.2d 212, 527 N.E.2d 1194 (1988) (Simons, J., dissenting)). The test to determine "whether the defendants' actions fall within the scope of their employment is whether the act was done while the servant was doing his master's work, no matter how irregularly, or with what disregard of instructions." Id. (quoting Riviello v. Waldron, 47 N.Y.2d 297, 302 (1979)). Here, clearly the claims against the defendants fall within the scope of their employment. See, e.g., Ruffin v. Deperio, 97 F. Supp.2d 346, 355-356 (W.D.N.Y. 2000) (Dismissing 8th Amendment deliberate indifference claim against prison medical staff); Boyd v. Selmer, 842 F. Supp. 52, 57 (N.D.N.Y. 1994) (Dismissing 8th Amendment excessive force claims against corrections officers); but see, Martin v. New York State Dep't of Corr. Serv. 224 F. Supp.2d 434, 442-443 (N.D.N.Y. 2002) (Sexual harassment and retaliation are not within scope of corrections officers' employment).
Accordingly, the Court dismisses the plaintiff's state tort causes of action.
C. FAILURE TO STATE A CLAIM
Pursuant to the Rule 12(b)(6), a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." It is well settled that in determining a motion under Rule 12(b)(6), a district court must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the non-moving party. Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999) (citation omitted), cert. denied 531 U.S. 1052 (2000). "General, conclusory allegations need not be credited, however, when they are belied by more specific allegations of the complaint." Hirsch v. Arthur Andersen Co., 72 F.3d 1085, 1092 (2d Cir. 1995) (citations omitted). The Court may dismiss the complaint "only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Moreover, "a Rule 12(b)(6) motion to dismiss need not be granted nor denied in toto but may be granted as to part of a complaint and denied as to the remainder." Decker v. Massey-Ferguson, Ltd., 681 F.2d 111, 115 (2d Cir. 1982) (citations omitted).
As discussed earlier, defendants allege that the complaint fails to state a claim against Holton for lack of personal involvement. "[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citations omitted). The plaintiff may satisfy this requirement by alleging that defendants:
(1) participated directly in the alleged constitutional violation; (2) failed to remedy the wrong after being informed through a report or an appeal; (3) created a policy or custom under which unconstitutional practices occurred or allowed the continuation of such policy or custom; (4) were grossly negligent in supervising subordinates who committed the wrongful acts; or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.
Morris v. Eversley, 205 F. Supp.2d 234, 241 (S.D.N.Y. 2002) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)).
Here, defendants raise the point that nowhere in the plaintiff's factual recitation nor in the "parties" portion of the complaint is Holton mentioned. However, "the Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim." Conley v. Gibson, 355 U.S. at 47, 78 S.Ct. at 103. "[A]ll the Rules require is 'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Id. (footnote omitted). Holton is mentioned under count II as having "failed or refused to provide competent medical care to plaintiff for an unreasonable length of time." Complaint [# 1], ¶ 31. The complaint further alleges that, ". . . defendants Yin, Fowler, and Holton, following plaintiff's 5.16.01 injuries, have failed continually to respond to plaintiff's persisted requests for competent care of his ongoing medical problems." Id. at ¶ 32.
While there was more detail for claims against other defendants, the Court nonetheless finds that there is sufficient information within these passages from the plaintiff's complaint to state a claim against Holton.
Accordingly, the Court denies the motion to dismiss for failure to state a claim against defendant Holton.
IV. CONCLUSION
The Court grants the defendants' motion [# 2] in part and dismisses with prejudice all New York State tort law claims against all defendants pursuant to New York Corrections Law § 24. However, that part of defendants' application seeking dismissal of plaintiff's federal claims is denied.
So ordered.