Opinion
01 Civ. 6935 (SAS)
August 6, 2002
Richard J. Cardinale, Esq., Cardinale, Hueston Marinelli, Brooklyn, NY, for Plaintiff.
Irma W. Cosgriff, Esq., Senior Assistant County Attorney, Westchester County Attorney's Office, White Plains, NY, for Defendant.
OPINION AND ORDER
Sylvia Hines brings this action pursuant to sections 1981 and 1983 of Title 42 of the United States Code against the Valhalla County Correctional Facility, Sergeant Louis Crisci, Corrections Officer Andrew Maskiel, Corrections Officer John Cislak, and the County of Westchester. Hines alleges that defendants violated her First, Fourth, Eighth, and Fourteenth Amendment rights. All defendants now move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) on the ground that Hines failed to exhaust all available administrative remedies. For the following reasons, the motion is granted.
Because defendants' motion is granted, there is no need to address defendants' claim that the Valhalla County Correctional Facility and Westchester County are improper parties to this suit.
Hines also alleges a violation of her rights under the New York State Constitution and common law.
Although this motion to dismiss could also have been brought as a 12(b)(6) motion, this case would be dismissed under either standard.
I. FACTUAL BACKGROUND
In May 1999, Hines was a detainee at the Valhalla Correctional Facility, which is part of the Westchester County Department of Corrections ("WCDOC"). See First Amended Complaint ("Complaint") ¶¶ 1, 10. On May 13, 1999, Hines requested toilet paper and water. See id. Hines alleges that in response to her request, Sergeant Crisci, Corrections Officer Maskiel and Corrections Officer Cislak grabbed her by the throat, choked her, and slammed her into a wall. See id. ¶ 11. Hines further alleges that Sergeant Crisci uttered racial epithets. See id. ¶ 12. Hines believes that the County of Westchester was aware of the "improper training" of its officers that led to the deprivation of her rights. See id. ¶¶ 13-14.
Shortly after this incident, while still disoriented from the attack and from pain medication, Hines lodged a complaint in the Block Officer's grievance log book. See id. ¶ 8. When Hines did not receive a response to her complaint, she wrote to Warden Burckhard and other county officials. See id. ¶ 9. Hines alleges that as a result of that letter, she received messages from fellow inmates warning her that defendants would harm her in retaliation for her complaints. See id. Hines filed a Complaint with this court on July 27, 2001, and filed her First Amended Complaint on June 3, 2002.
II. LEGAL STANDARD
A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when "the district court lacks the statutory or constitutional power to adjudicate it." Tasini v. New York Times Co., 184 F. Supp.2d 350, 353 (S.D.N.Y. 2002) (quotations, alterations omitted). A plaintiff bears the burden of proving, by a preponderance of the evidence, that this Court has subject matter jurisdiction over her case. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
"It is well ingrained in the law that subject-matter jurisdiction can be called into question either by challenging the sufficiency of the allegation or by challenging the accuracy of the jurisdictional facts alleged." Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 68 (1987). When faced with a Rule 12(b)(1) motion that contains a factual challenge, a court must draw jurisdictional facts from the complaint, affidavits and exhibits submitted by the parties. See Robinson v. Government of Malaysia, 269 F.3d 133, 140 (2d Cir. 2001); Kline v. Kaneko, 685 F. Supp. 386, 389-90 (S.D.N.Y. 1988).
If a defendant challenges only the legal sufficiency of a plaintiff's jurisdictional allegations, a court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff. See Robinson, 269 F.3d at 140; Tasini, 184 F. Supp.2d at 353 (referring to such a challenge as "facial" as distinguished from a "factual attack"); Virtual Countries, Inc. v. Republic of South Africa, 148 F. Supp.2d 256, 262 (S.D.N.Y. 2001). Of course, "where evidence relevant to the jurisdictional question is before the court, the district court may refer to that evidence." Robinson, 269 F.3d at 140 (quotation marks, citation and alterations omitted).
III. HINES FAILED TO EXHAUST AVAILABLE REMEDIES
The Prisoner Litigation Reform Act ("PLRA") states that "no action shall be brought with respect to prison conditions under section 1983 of this title . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). This 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 v. Nussle, 122 S.Ct. 983, 992 (2002). Inmates must therefore exhaust all administrative remedies, at all levels of appeal, in order for their claims to survive a motion to dismiss. See Hemphill v. New York, 198 F. Supp.2d 546, 548 (S.D.N.Y. 2002).
WCDOC has created a four-tiered grievance process for all prisoner complaints. See S.O.P. V 02-05 Department of Corrections Inmate Grievance Program ("Grievance Program"), Ex. G to 6/7/02 Declaration of Irma W. Cosgriff, counsel for defendants, in support of motion to dismiss ("Cosgriff Decl.")
First, an inmate may file an informal complaint with the Block Officer, who logs the complaint in a grievance log book. See Grievance Program ¶¶ 2-2(b). Second, if the inmate is dissatisfied with the response to the complaint, the inmate can file a formal grievance which will be investigated by a Sergeant. See id. ¶¶ 3, 6). Third, the inmate can appeal to the Division Head. See id. ¶ 8. Fourth, if the inmate is still dissatisfied, the inmate can appeal to the Citizens' Policy and Complaint Review Council ("CORC"). See id. ¶ 11. The grievance process is then complete and, if still dissatisfied, the inmate may bring a complaint in the appropriate court. See Hemphill, 198 F. Supp.2d at 548.
Upon admission to WCDOC in 1998, Hines signed a form acknowledging receipt of "Inmate Rules Regulations" which discusses the location of grievance forms. See 10/24/98 Inmate Admission Form, Ex. E to Cosgriff Decl.; Inmate Rules and Regulations, S.O.P. III 25-06, Ex. F to Cosgriff Decl. ¶¶ 3, 5.
Hines claims that she completed the first level of the process by filing a claim with her Block Officer. However, even if this were true, all levels of the grievance process must be completed before a plaintiff can bring a claim in federal court. See Kearsey v. Williams, No. 99 Civ. 8646, 2002 WL 1268014, at *2 (S.D.N.Y. June 6, 2002) (holding that when an inmate "has failed to exhaust his available administrative remedies, including all appellate remedies, dismissal is mandatory.") (citing Waters v. Schneider, No. 01 Civ. 5217, 2002 WL 727025, at *1 (S.D.N.Y. Apr. 23, 2002)). See also Concepcion v. Commissioner of Dep't of Corr. Servs., No. 97 Civ. 1569, 2002 WL 1186180, at *1 (S.D.N.Y. May 31, 2002) (dismissing suit "because [inmate] did not appeal his grievance to the CORC"); Martin v. Fusco, No. 01 Civ. 6460, 2002 WL 1401970, at *3 (S.D.N.Y. June 28, 2002) ("Because plaintiff failed to appeal to the CORC in accordance with the third level of the grievance process, his Complaint must be dismissed"). Thus, because Hines only utilized the first of the Grievance Program's four levels, her Complaint must be dismissed under Porter for failure to exhaust administrative remedies.
Defendants deny that any form of complaint was made. See Affidavit of Associate Warden Gerald Burckhard, Ex. A to Cosgriff Decl., ¶¶ 15-16.
Hines argues that she effectively exhausted her administrative remedies under two legal theories, neither of which have any merit. First, Hines argues that she was not required to follow the Grievance Program because she is seeking monetary damages, an unavailable remedy under the Grievance Program. This argument fails. The Supreme Court has stated: "Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit." Porter, 122 S.Ct. at 988. See also Thomas v. Henry, No. 02 Civ. 2584, 2002 WL 922388, at *1 (S.D.N.Y. May 7, 2002) ("Exhaustion is required even when a prisoner seeks a remedy that cannot be awarded by the administrative body hearing the complaint."). Therefore, although WCDOC cannot grant her the relief she seeks, Hines's suit remains barred until she completes all levels of the Grievance Program.
Second, Hines claims that Porter should not apply in this case because special circumstances exist that should exempt her from the exhaustion requirement. In O'Connor v. Featherston, No. 01 Civ. 3251, 2002 WL 818085, at *2 (S.D.N.Y. Apr. 29, 2002), the court held that an inmate may defeat a motion to dismiss where he has made a "reasonable attempt" to exhaust administrative remedies. See id. See also Ford v. McGinnis, No. 00 Civ. 3437, 2002 WL 1313298, at *4 (S.D.N.Y. June 14, 2002) ("Although all of the administrative remedies may not have been fully exhausted technically, [plaintiff] made a substantial effort to obtain [an] administrative remedy.").
Hines argues that because she was in a disoriented state after the attack, she should be exempt from filing a grievance. However, the facts in Hines's case differ from O'Connor. In O'Connor, the defendants prevented the plaintiff from filing a grievance. The plaintiff was put on medical restriction and denied access to grievance forms for the entire fourteen day period in which he was eligible to file a grievance. Plaintiff filed a late grievance form as soon as he was released from medical restriction. See O'Connor, 2002 WL 818085, at *2. Here, defendants did nothing to prevent Hines from filing while she was sick, and Hines did not make an effort to file a grievance after her illness. Therefore, although it may have been difficult for Hines to file a formal complaint after the attack, she did not make the required "reasonable attempt" or "substantial effort" to exhaust. Thus, Hines is not excused from following WCDOC's Grievance Program.
Hines felt well enough to log a complaint with the Block Officer on May 20, 1999 (Hines requested that all officers "wear name plates or tags as to their identity."). See Grievance Log Book Excerpts, Ex. H to Cosgriff Decl. WCDOC does not appear to have a time limit for filing grievances. See Grievance Program ¶¶ 1-24.
Similarly, Hines's fear of retaliation does not excuse her failure to exhaust. Although any inmate complaint can result in retaliation, "[t]he fear of retaliation is particularly strong with excessive force claims, as institutional bias is quite high and guards face potential criminal liability." Ann H. Mathews, The Inapplicability Of The Prison Litigation Reform Act To Prisoner Claims of Excessive Force, 77 N.Y.U. L. Rev. 536, 555 (2002). Yet despite the greater risk of retaliation, the Supreme Court held that Congress intended the exhaustion requirement of the PLRA to extend to all inmate claims, "whether they allege excessive force or some other wrong." Porter, 122 S.Ct. at 992. If an inmate's allegation of a secondhand retaliatory threat was enough to allow the inmate to begin litigation without properly filing grievances, the PLRA's exhaustion requirement could be easily circumvented by all inmates. A general fear of retaliation is not an exception to the PLRA's exhaustion requirement. Therefore, Hines's claim of an exemption for her failure to exhaust based on fear of retaliation must fail.
There is no need to decide whether a more specific threat of retaliation would excuse an inmate's failure to exhaust as there is no allegation of such a threat.
V. CONCLUSION
For the foregoing reasons, Hines's claims are dismissed for failure to exhaust available administrative remedies. The Clerk of the Court is directed to close this case.
SO ORDERED.