Opinion
12 CV. 4695 (CM)
06-24-2013
LUIS GARCIA, Plaintiff, v. SUPT. HEATH, et al., Defendants.
ORDER
DECISION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT
McMahon, J.:
INTRODUCTION
Pro se Plaintiff Luis Garcia ("Garcia") commenced this action, under 42 U.S.C. § 1983, against Defendants Supt. Heath, Grievance Director Karen Bellamy, Lt. M. Haase, Sgt. T. Brooks, C.O. L. Brown, C.O. M. Gozze, C.O. L Davis, C.O. F. Caraballo, C.O. Caban, C.O. M. Maldonado, C.O. E. Noriega, and Nurse A. Adenkanmi, each individually and in their official capacities. Plaintiff alleges that, in an August 2010 incident, Defendant correction personnel assaulted him and denied him suitable medical treatment, thereby violating his Eighth and Fourteenth Amendment rights.
Defendants now move to dismiss Garcia's Complaint in its entirety under Federal Rule 12(b)(6), on the grounds that Garcia failed to exhaust his administrative remedies as required by 42 U.S.C § 1997e(a), the Prison Litigation Reform Act ("PLRA"). Defendants also move (1) to dismiss the Complaint as against Defendants Superintendent Heath and Nurse Adenkamni for failure to state a claim in which relief may be granted (Fed. R. Civ. P. 12(b)(6)), and (2) to dismiss Plaintiff's claims for damages against Defendants in their official capacities, on grounds that such claims are barred by the Eleventh Amendment. (Fed. R. Civ. P. 12(b)(1))
For the reasons set forth below, Defendants' motion is GRANTED. Plaintiff's Complaint is dismissed in its entirety for failure to exhaust administrative remedies.
BACKGROUND
I. Extraction Incident
On August 6, 2010, Plaintiff, an inmate at Sing Sing Correctional Facility, had to be "extracted" from the prison shower area. (Compl. 21.) Plaintiff was in possession of a "state razor." When he refused to hand it over, a six-man extraction team - comprised of Defendants Gozze, Davis, Carabello, Maldonado, Brown, Caban, along with Defendant Noriega, a cameraman documenting the operation - was sent in to retrieve the razor. (Id.)
As alleged in the complaint, Defendant Gozze, "using shield knocked [Plaintiff] in the head causing him to hit [his] head on the hard sink," making him dizzy before he was "thrown to the floor and beaten maliciously and sadistically." (Id.) After Plaintiff was restrained on the ground, Defendants Davis, Carabello, and Caban were "punching [him] in [his] facial area and body." (Id.) Defendant Maldonado "was bending [his] right leg till [Plaintiff] thought [his] leg was going to break," and Defendant Brown "was kicking [his] left leg." (Id.)
As a result of the incident, Plaintiff claims to have suffered multiple contusions, scrapes, and bruises across his head, face, shoulders, and arms. (Id. 23.)
Plaintiff was taken to Defendant Nurse Adenkanmi. He told the nurse about his symptoms and history of seizures. Defendant Adenkanmi prescribed a topical antibiotic, refused Plaintiff's request for further treatment, and ordered him back to his cell.
Soon thereafter, Plaintiff suffered a seizure and was hospitalized.
II. Plaintiff's Grievance History
Under DOCCS procedures, Plaintiff had 21 days after August 6, 2010 to file a grievance arising out of the August 6 incident. According to letters attached to Plaintiff's complaint, Plaintiff filed two grievances with IGP Supervisor Frank Robinson - on August 10, 2010 and again on August 22, 2010 - alleging excessive force in connection with the August 6 incident. Apparently he heard nothing in response.
Plaintiff filed follow-up letters on August 25, 2010 and October 17, 2010, asking for the grievance numbers and a status update. (Id. 14, 20.) Plaintiff also wrote to Grievance Officer Martinez on September 21, 2010, asking about the status of his grievance. (Id. 15.) According to him, he received no response.
On October 6, 2010, Plaintiff wrote to Defendant Superintendent Heath, indicating that he was waiting for a response in order to be able to appeal the expected denial "to Albany and have them investigate [his] concerns." (Id. 16-17.) The same day, he wrote to Defendant Karen Bellamy, director of the Inmate Grievance Program at the New York State Department of Corrections and Community Supervision ("DOCCS"), and said plainly that he wished to exhaust his administrative remedies. (Id. 10-11.) Plaintiff received no response to these communications, either.
In his October 17, 2010 letter to Robinson, Plaintiff referred to two other grievances he filed in connection with the August 6 incident that were apparently rejected for untimeliness. Plaintiff claimed that any delays were attributable to his hospitalization after the "extraction." (Id. 14.) There is no question that Plaintiff's grievances filed on August 10 and August 22, 2010 were timely.
Plaintiff alleges that he wrote to "IG" (the Inspector General's Office) to investigate the case. (Id. 14.) He pleads that the Inspector General's Office conducted an "exhaustive internal investigation" into this matter, but that - as with all his communications - he received no response.
Plaintiff filed a Freedom of Information Act (FOIA) request on January 23, 2011, with a follow-up request on April 3, 2011. (Id. 18-19.) As a result of his FOIA request, Plaintiff has received the Use of Force photos (showing Plaintiff's injuries after the incident), the extraction video (a VHS tape with footage from the incident), his medical report (from his hospitalization, the day after the extraction, for a seizure), and DOCCS' "Unusual Incident Report" (which describes the force used by several of the Defendants as a mere "body hold").
These items were attached to Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss, rather than the original Complaint, but were incorporated by reference in the Complaint. They were not needed in connection with either.
On June 14, 2012, Plaintiff filed suit against Defendants under the Civil Rights Act, 42 U.S.C. § 1983. He seeks injunctive relief to prevent similar future actions by the Defendants, along with compensatory and punitive damages to redress his injuries. (Id. 7.).
On November 30, 2012, Defendants filed a motion to dismiss Plaintiff's complaint in its entirety pursuant to Federal Rules 12(b)(1) and (6).
Defendants also moved, in the alternative, for summary judgment pursuant to Federal Rule 56 on the ground of qualified immunity. Per the Court's individual rules, Defendants have not briefed this issue in their Memorandum of Law in Support of Motion to Dismiss. --------
DISCUSSION
I. Standard of Review for Motion to Dismiss Pro Se Complaint
In deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court must liberally construe all claims, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Cargo Partner AG v. Albatrans, Inc., 352 F.3d 41, 44 (2d Cir. 2003); see also Roth, 489 F.3d at 510 (2d Cir. 2007). The issue at this stage "is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims." Green v. Cnty. of Monroe, 423 F. App'x 98, 100 (2d Cir. 2011) (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998)) (internal citation omitted).
However, to survive a motion to dismiss, "a complaint must contain sufficient factual matter ... to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal quotations, citations, and alterations omitted). Thus, unless a plaintiff's well-pleaded allegations have "nudged [its] claims across the line from conceivable to plausible, [the plaintiff's] complaint must be dismissed." Id. at 570; Iqbal, 129 S.Ct. at 1950-51.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint, or portion thereof, that states a frivolous or malicious claim, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b) and § 1915(e)(2)(B); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). While the law authorizes dismissal on any of these grounds, courts "remain obligated to construe pro se complaints liberally." Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). A "pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Thus, pro se complaints should be read with "special solicitude" and should be interpreted to raise the "strongest [claims] that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (citations omitted). This is particularly so when civil rights violations are alleged. See, e.g., McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004).
II. Plaintiff's Claims are Barred Under PLRA due to Failure to Exhaust
Administrative Remedies
A. Plaintiff Failed to Exhaust Administrative Remedies
The PLRA states, "No 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) (2006) (emphasis added). The Supreme Court "has held 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." George v. Morrison-Warden, No. 06 Civ. 3188, 2007 WL 1686321, at *2 (S.D.N.Y. Jun. 11, 2007) (citing Porter v. Nussle, 534 U.S. 516, 532 (2002)). Further, in Woodford v. Ngo, 548 U.S. 81, 126 S. Ct. 2378, 165 L. Ed. 2d 368 (2006), the Supreme Court held that "untimely or otherwise procedurally defective administrative grievance[s] or appeal[s]" do not satisfy the PLRA, which requires "proper exhaustion."
Failure to exhaust is not a jurisdictional issue, but rather an affirmative defense for which Defendants bear the burden of proof. Jones v. Bock, 549 U.S. 199, 212, 127 S. Ct. 910, 919, 166 L. Ed. 2d 798 (2007). However, exhaustion is mandatory. Richardson v. Goord, 347 F.3d 431, 434 (2d Cir. 2003).
Our initial question is simple: did Plaintiff exhaust all avenues of appeal available under the DOCCS Inmate Grievance Procedure ("IGP")?
There are two different IGP grievance procedures. Under the normal, three-step process:
(1) First, the inmate must file a complaint with the Inmate Grievance Resolution Committee ("IGRC") within twenty-one calendar days of the alleged incident. 7 NYCRR § 701.5(a)-(b).
(2) Second, the inmate may appeal an unfavorable decision by the IGRC to the superintendent within seven calendar days after receipt of the IGRC's written response. 7 NYCRR § 701.5(c).
(3) Third, the inmate may appeal an unfavorable decision by the superintendent to CORC within seven calendar days after receipt of the superintendent's written response. 7 NYCRR § 701.5(d).
DOCCS also provides an expedited procedure for grievances alleging harassment. N.Y. Comp. R. & Regs. tit. 7, § 701.8 (2010). Harassment includes "employee misconduct meant to annoy, intimidate or harm an inmate." Id. § 701.2(e). Under the expedited process:
(1) The inmate must submit a formal grievance report and is encouraged, but not required, to report the incident to the immediate supervisor of the harassing DOCCS employee. Id. § 701.8(a).
(2) The IGRC is bypassed; the Superintendent must "promptly determine whether the grievance, if true, would represent a bona fide case of harassment." Id. § 701.8(c). If so, the Superintendent must (1) initiate an in-house investigation by higher ranking
personnel; (2) request an investigation by the Inspector General's Office; or (3) request an investigation by state police. Id. § 701.8(d).
(3) "Within 25 calendar days of receipt of the grievance, the Superintendent will render a decision on the grievance and transmit said decision, with reasons stated to the grievant, the grievance clerk, and any direct party of interest." Id. § 701.8(f).
(4) To appeal the Superintendent's decision to CORC, the prisoner must file a Notice of Decision to appeal with the inmate's grievance clerk within seven calendar days of receiving the decision. Id. § 701.8(h).
(5) If the Superintendent fails to respond within 25 days, the grievant may appeal his grievance to CORC directly. Id. § 701.8(g).
"[O]nly after CORC has reviewed the appeal and rendered a decision are New York's grievance procedures exhausted." Gardner v. Daddezio, No. 07 Civ. 7201, 2008 WL 4826025, at *2 (S.D.N.Y. Nov. 5, 2008). Furthermore - and of great significance in this case - "[i]t is well-settled ... that 'even when an inmate files a grievance and receives no response, he must nevertheless properly exhaust all appeals before his grievance is considered exhausted.'" George v. Morrison-Warden, 06 CIV. 3188(SAS), 2007 WL 1686321 (S.D.N.Y. June 11, 2007), at *3 (quoting Biligen v. Griffen, No. 06 Civ. 4400, 2007 WL 430427, *2 (SDNY Feb. 8, 2007) (emphasis added) (accord Williams v. City of New York, No. 03 Civ. 5342, 2005 WL 2862007, at *10 (S.D.N.Y. Nov. 1, 2005).
Here, Plaintiff filed at least two IGP grievances in this matter, on August 10 and August 22, 2010, and followed them up with letters to the IGP Supervisor, Grievance Officer, Superintendant, and the IGP Director. Plaintiff does not explicitly state which of the grievance procedures is applicable - the standard §701.5 procedure or the expedited §701.8 procedure for harassment claims - but Defendants' declaration from IGP Director Karen Bellamy indicates that §701.8 applies, presumably since Plaintiff's grievance alleged "employee misconduct meant to ... harm an inmate." (Def. Mem. of Law in Supp. of Mot. to Dismiss Ex. A.)
If Defendants are correct that the §701.8 "expedited" procedure applies to an excessive force claim, Plaintiff's grievance report should have been processed directly by the Superintendent, who was required to render a decision within 25 days of its receipt.
Plaintiff avers that he received no reply from any of the parties involved. He does not affirmatively state whether he appealed his grievance to CORC within a reasonable period after the Superintendent's failure to respond within 25 days. Defendant Karen Bellamy, IGP Director, filed a declaration stating that Plaintiff did not file a CORC appeal for any incident taking place in August 2010. (Def. Mem. of Law in Opp. to Mot. to Dismiss Ex. A.) Plaintiff does not argue otherwise.
It is irrelevant that the Plaintiff received no decision from the Superintendent on his grievances. Plaintiff was obligated to file an appeal with CORC within a reasonable period of time after he should have, but did not, hear the result of his grievance from the superintendent. Sending letters to the various DOCCS officers asking for the result does not qualify as filing an appeal. Plaintiff's stated desire to "exhaust [his] administration remedies to file a 1983 in Southern District Court" (Compl. 10) does not alter or excuse his failure actually to do so. He was not privileged to let the matter drop after he failed to get a response to his letters, and he cannot hide behind his numerous inquiries about the fate of his grievance addressed to increasingly higher levels of management. "Appeals" by Plaintiff attempted in the form of letters to DOCCS officers were "procedurally defective" and so not sufficient, under Woodford, to satisfy the exhaustion requirement. He had to take the matter to CORC. Plaintiff did not do so. Plaintiff plainly failed to exhaust his administrative remedies.
This is true even if the correct procedure was the non-expedited, §701.5 procedure. Unlike the §701.8 "expedited" procedure - which specifically states that an inmate who receives no response from the Superintendant may file an appeal with CORC - §701.5 does not contain any explicit mention of what to do in case of non-response. Nonetheless, courts have recognized that a prisoner who receives no response to a §701.5 grievance must file an appeal within a reasonable time. See Saunders v. Goord, No. 98 Civ. 8501(JGK), 2002 WL 1751341, at *3 (S.D.N.Y. July 29, 2002), Veloz v. New York, 339 F.Supp.2d 505, 516 (S.D.N.Y.2004). B. Failure to Exhaust is Not Excused Under Hemphill Analysis
In Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004), the Second Circuit held that when an inmate plausibly seeks to challenge defendants' contention that he has failed to exhaust administrative remedies under the PLRA, the Court must analyze his claim under a three-part test. See Macias v. Zenk, 495 F.3d 37, 41 (2d Cir. 2007). The Court must consider: (1) whether the administrative remedies were, in fact, available to the prisoner; if not, the exhaustion requirement is inapplicable; (2) if those remedies were available, whether "the defendants are estopped from raising the affirmative defense of non-exhaustion because their actions inhibited the inmate's exhaustion of remedies, or because they forfeited the defense by failing to raise or preserve it," Andrews v. Cruz, No. 04 Civ. 566(PAC)(RLE), 2010 WL 1142010, at *3 (S.D.N.Y. March 9, 2010); and, finally, (3) whether "special circumstances" have been plausibly alleged that justify the prisoner's failure to exhaust. See Hemphill, 380 F.3d at 686. At the third step, "special circumstances" could include situations where a plaintiff's "reasonable" interpretation of applicable regulations regarding the grievance process led him or her to conclude that the dispute could not be grieved. Id. at 689; see also Giano v. Goord, 380 F.3d 670, 676-77 (2d Cir. 2004).
Woodford's interpretation of the PLRA's exhaustion requirement through the lens of the administrative law doctrine of exhaustion, and its focus on the benefits of strict adherence to grievance procedures, may cast some doubt on court-created exceptions to exhaustion like Hemphill. See Zappulla v. Fischer, 11 CIV. 6733 JMF, 2013 WL 1387033 (S.D.N.Y. Apr. 5, 2013). The Second Circuit itself mentioned that Woodford could affect Hemphill in Amador v. Andrews, 655 F.3d 89, 102 (2d Cir. 2011), Macias, 495 F.3d at 43 n. 1, and Ruggiero v. County of Orange, 467 F.3d 170, 176 (2d Cir. 2006), although in some recent cases, Hemphill has been treated as good law. See, e.g., Messa v. Goord, 652 F.3d 305, 309-10 (2d Cir.2011), Pooler v. Nassau Univ. Med. Ctr., 848 F.Supp.2d 332, 340 (E.D.N.Y.2012).
Assuming, however, that Hemphill remains good law, it is of no assistance to Plaintiff.
Plaintiff does not make a Step 1 argument - that is, he does not contend that no grievance procedure was available, and indeed, a grievance procedure was available - the DOCCS grievance procedure, described above. Plaintiff actually filed two grievances pursuant to that procedure. He would be hard pressed to say that it did not exist.
Plaintiff has not pointed to any "special circumstances" that would have excused his failure to exhaust either - no medical incapacity, for example, and no physical interference with his ability to file papers in connection with his grievances by prison staff. So he fails to satisfy Hemphill step 3.
This leaves step 2. In his Complaint, Plaintiff alleges that Sing Sing prison officials "prevented" him from exhausting his administrative remedies by interfering with his grievance filing. In his FOIA letter on January 23, 2011, Plaintiff stated that he had been "waiting to exhaust [his] administrative remedies," but his "grievance was thrown away" and "never found." (Compl. 18.) The Complaint alleges that Defendant Martinez acknowledged receipt of Plaintiff's August 22, 2010 grievance, but contends that "now nobody know[s] about that grievance." (Id. 24.) Plaintiff states that he "did all [he] could to exhaust [his] administrative remedies and was hinder[ed] by the grievance guy Frank Rob[inson] at Sing Sing Corr[ectional] Fac[ility]." (Id. 7.) Further, he was "hindered by staff at Sing Sing . . . from exhausting [his] administrative remedies [because he] stated [he] would sue for what was done to [him]." (Id. 25.)
These assertions are all merely conclusory. They are also wrong as a matter of indisputable fact. Plaintiff alleges no facts suggesting that Defendants prevented him from filing an appeal to CORC. Pursuant to DOCCS' procedure, Plaintiff was entitled to file a CORC appeal 25 days after filing his grievance if he did not hear from the Superintendent on an expedited grievance, or within a reasonable period after failing to get any response to a regular grievance. He did not file any appeal. Whether Defendants ignored Plaintiff's grievances, tore them up, or fed them to the dog is of no moment - none of these things "prevented" Plaintiff from filing an appeal. Plaintiff was not physically incapable of filing an appeal - he filed letters, petitions, and FOIA requests at and after the time when he should have been filing his appeal. Had Plaintiff not chosen "alternative" avenues of complaint, he would not be in the position he occupies today - which is, out of court.
CONCLUSION
For the reasons set forth above, Defendants' motion to dismiss the complaint is GRANTED. Plaintiff's Complaint is dismissed in its entirety.
The Clerk of the Court is directed to remove the motion at Docket No. 25 from the Court's list of pending motions. DATED: New York, New York
June 24, 2013
/s/_________
United States District Judge