Opinion
9:17-CV-1303 (BKS/TWD)
12-06-2018
SHAIN MALDONATO, Plaintiff, v. VIJAYKUMAR S. MANDALAYWALA, et al., Defendants.
APPEARANCES: SHAIN MALDONATO Plaintiff pro se 15-B-2138 Upstate Correctional Facility P.O. Box 2001 Malone, New York 12953 BARBARA D. UNDERWOOD Attorney General for the State of New York Counsel for Defendants The Capitol Albany, New York 12224 OF COUNSEL: DAVID A. ROSENBERG, ESQ. Assistant Attorney General
APPEARANCES: SHAIN MALDONATO
Plaintiff pro se
15-B-2138
Upstate Correctional Facility
P.O. Box 2001
Malone, New York 12953 BARBARA D. UNDERWOOD
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224 OF COUNSEL: DAVID A. ROSENBERG, ESQ.
Assistant Attorney General THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
I. INTRODUCTION
Plaintiff Shain Maldonato commenced this pro se civil rights action on November 29, 2017. (Dkt. No. 1.) On May 29, 2018, the Hon. Brenda K. Sannes, U.S. District Judge, granted Plaintiff leave to file a second amended complaint. (Dkt. No. 15.) The Defendants and claims remaining following sua sponte review of the second amended complaint by Judge Sannes are: (1) Eighth Amendment medical indifference claims against Defendants Dr. Vijaykumar S. Mandalaywala ("Dr. Mandalaywala"), Jane Doe #1, and Jane Doe #2; (2) Eighth Amendment conditions of confinement claims against Jane Doe #1, and Jane Doe #2; and (3) Eighth Amendment excessive force claims against Defendant Corrections Officer ("CO") D. Bennett ("Bennett") and John Doe #1. (Dkt. No. 17 at 13.)
Because of the pendency of Plaintiff's claims against the "Doe" Defendants, the Superintendent of Great Meadow Correctional Facility has been named as a Defendant for service and discovery purposes only. (Dkt. No. 26.)
Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office.
Defendants and Bennett have now moved pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for dismissal of Plaintiff's Eighth Amendment medical indifference claim against Dr. Mandalaywala for failure to state a claim, and his Eighth Amendment excessive force claim against Bennett for failure to exhaust. (Dkt. No. 24.) Plaintiff has filed a sworn response to the motion. (Dkt. No. 33.) For reasons explained below, the Court recommends that Defendants' motion to dismiss be denied.
II. SECOND AMENDED COMPLAINT
A. Dr. Mandalaywala
On October 1, 2016, while Plaintiff was housed at Upstate Correctional Facility ("Upstate"), he was admitted to the Neurology Stroke Service at Albany Medical Center Hospital ("Albany Medical") where he was diagnosed with a left hemispheric stroke secondary to left MCA stenosis. (Dkt. Nos. 15 at 4-5; 15-1 at 5.) Plaintiff alleges that on October 19, 2016, while in the hospital, he was told that he needed physical and speech therapy. (Dkt. No. 15 at 5.) "Discharge Recommendations" in Plaintiff's Albany Medical Transfer Discharge Summary ("Discharge Summary") state "[t]he patient is to continue work with speech and swallowing pathologist . . . and to continue working with Physical and Occupational Therapy." (Dkt. No. 15-1 at 6.) However, an edit added to the Transfer Discharge Summary on October 20, 2016, by Nurse Practitioner ("NP") Yama Rasoully, indicates "PT/OT Discontinue 10/20/16 2:45 pm." Id. at 20. Plaintiff's Upstate progress notes, annexed as an exhibit to Plaintiff's second amended complaint, reference an October 20, 2016, telephone call between RN Reome of Upstate and Albany Medical regarding Plaintiff stating: "T.C. to Albany Medical Ctr. about Dysphagia, 4 diet [with] nectar thick liquids. States inmate's orders in hospital were thin liquids and can't go to an RMU needing only Speech Therapy. PT/OT D/C'd 10/20/16." (Dkt. No. 15-1 at 24.)
Plaintiff was returned to Upstate on October 21, 2016, and placed in the infirmary. Id. Plaintiff's Upstate progress note for that date states that he ambulated to the infirmary independently without difficulty, and his speech was clear but he had some difficulty communicating at times, particularly if he attempted to speak too fast. Id. According to the October 21, 2016, progress notes, Plaintiff stated that an evaluation done at Albany Medical Center showed no need for speech, physical, or occupational therapy. Id. The notes indicated that Plaintiff would be kept in the infirmary over the weekend and would probably thereafter be discharged to the block by Dr. Kumar. Id. The notes also disclosed that Plaintiff wanted to get back to his job in the law library. Id. Additional progress notes from October 21, 2016, indicate Plaintiff was able to get out of bed with no difficulty and had a normal gait. Id. The last progress note for October 21, 2016, provided by Plaintiff states that Plaintiff was able to speak clearly but in short one or two word sentences, and that he could answer yes or no questions. Id.
Defendants argue that Plaintiff has provided no basis for his claim that "Dr. Kumar" in the progress note is a reference to Defendant Dr. Vijaykumar S. Mandalaywala. (Dkt. No. 34 at 7.) The Court, however, finds it reasonable for purposes of this motion, to infer that Defendant is the "Dr. Kumar" in the progress note given the Defendant's first name. See Hernandez, 18 F.3d at 136 (reasonable inferences to be construed in plaintiff's favor on a motion to dismiss); see also Reeder v. Young, No. 9:16-CV-1129 (GTS/TWD), 2017 WL 564526, at *1 (N.D.N.Y. Feb. 13, 2017) and 2018 WL 1468655, at *1 (N.D.N.Y. Mar. 26, 2018) (Dr. Mandalaywala sued as "Dr. V. Kumar").
In his notarized opposition to Defendants' motion to dismiss, Plaintiff contends that the only reason for the edit "PT/OT D/C'd 10/20/16" by NP Rasoully was that Plaintiff was leaving the hospital and would therefore no longer be having therapy there. (Dkt. Nos. 15-1 at 24; 33 at 3.) Plaintiff also denies stating he did not want physical or occupational therapy as stated in the progress notes and blames having been on medication and not being coherent at the time. (Dkt. No. 33 at 4.) Plaintiff claims in his opposition that contrary to the Upstate progress notes, his whole right side was debilitated, and he walked with extreme difficulty and pain. Id. According to Plaintiff, any observer could see he was clearly in distress and needed physical and occupational therapy. Id.
Plaintiff alleges that Defendant Dr. Mandalaywala, the Department of Corrections and Community Supervision ("DOCCS") physician who was responsible for primary medical care at Upstate and was supervising physician to the medical staff, sent Plaintiff back to his cell on October 23, 2016. (Dkt. Nos. 15 at 3, 5; 33 at 4.) A nurse signed a bottom bunk permit for Plaintiff on October 27, 2016. (Dkt. No. 33 at 4-5.) Plaintiff claims to have made a request for a "flats" permit directly to Dr. Mandalaywala at the time he was sent back to his cell. (Dkt. No. 33 at 4.) Plaintiff was sent on a medical trip to Great Meadow Correctional Facility ("Great Meadow") on December 12, 2016, and returned to Upstate on December 26, 2016. Id. at 5. Upon his return, he made numerous attempts to obtain a flats permit, and a permit was finally issued on January 10, 2017. Id. at 5.
Plaintiff claims that Dr. Mandalaywala deprived him of his Eighth Amendment right to fair and adequate medical care. Dkt. No. 15 at 9.) According to Plaintiff, he never received physical or speech therapy, despite Dr. Mandalaywala having received documents from the hospital indicating he needed the therapy. Id. Plaintiff further claims that his Eighth Amendment rights were violated by Dr. Mandalaywala's failure to issue him a flats permit for several weeks after his return from the hospital. Id. Plaintiff alleges that the delay greatly exacerbated his physical pain initially brought on by the stroke. Id. at 10.
B. CO Bennett
On December 12, 2016, Plaintiff was placed on a medical trip to Great Meadow where CO Bennett was working. (Dkt. No. 15 at 3, 6.) On December 26, 2016, at approximately 8:00am, Bennett told Plaintiff to get ready for his return to Upstate. Id. at 7. The cell door was opened after the draft bag with Plaintiff's property was closed and zip tied. Id. Plaintiff alleges that Bennett told him to approach Bennett walking backwards, and when Plaintiff stood in front of the cell, Bennett told him to spread his legs and touch the gate above the cell entrance with his hands. Id. According to Plaintiff, at that time he was unable to extend his right arm or stretch his right leg. Id. Plaintiff claims that Bennett began yelling and making threats as Plaintiff did his best to communicate to Bennett that he was unable to do what was being asked because his right side was debilitated. Id. at 8.
Plaintiff alleges that John Doe #1 came over and hit Plaintiff on the back of the head and when he hit Plaintiff a second time, Plaintiff's vision went blank and he passed out. Id. Doe #1 hit Plaintiff again and grabbed Plaintiff by his underarm to keep him on his feet as Doe #1 kicked Plaintiff's right foot to put it in the position they wanted. Id. Bennett then hit Plaintiff on the back of the head yelling, "Stop being stubborn. Put your hand on the gate," as inmates were yelling to stop beating on Plaintiff because he had just had a stroke. Id. When Doe #1 grabbed Plaintiff's arm and pulled his hand upward until it touched the gate, Plaintiff felt a pain shoot through his right side from ankle to wrist. Id. at 9. Bennett then said "You see, that wasn't complicated." Id.
Plaintiff contends that Bennett was aware Plaintiff had recently suffered a stroke and had paralysis, and that Bennett mocked, threatened and disrespected him in addition to hitting him in the head after Doe #1 had hit him. Id. at 12. Plaintiff has asserted an Eighth Amendment excessive force claim against Bennett.
III. LEGAL STANDARD GOVERNING RULE 12(b)(6) MOTIONS TO DISMISS
A defendant may move to dismiss a complaint "for failure to state a claim upon which relief can be granted" under Rule 12(b)(6). The motion tests the formal legal sufficiency of the complaint by determining whether it conforms to Federal Rule of Civil Procedure 8(a)(2), which requires that a complaint include "a short and plain statement of the claim showing that the pleader is entitled to relief." Bush v. Masiello, 55 F.R.D. 72, 74 (S.D.N.Y. 1972). Satisfaction of the requirement that a plaintiff "show" that he or she is entitled to relief requires that the complaint "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense . . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged but it has not shown that the pleader is entitled to relief." Id. at 679 (internal citation and punctuation omitted). "Factual allegations must be enough to raise a right to relief above a speculative level." Twombly, 550 U.S. 555.
A complaint may be dismissed pursuant to Rule 12(b)(6) only where it appears that there are not "enough facts to state a claim that is plausible on its face." Id. at 570. While Rule 8(a)(2) "does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me-accusation." Iqbal, 556 U.S. at 678 (citation and internal quotation marks omitted). A complaint which "tenders 'naked assertion[s]' devoid of 'further factual enhancement'" does not suffice. Id. (citation omitted).
"In reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. Where a party is proceeding pro se, the court is obliged to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (courts remain obligated to construe pro se complaints liberally even after Twombly).
On a motion to dismiss, "the complaint is deemed to include any written instrument attached to it as an exhibit or any statement or documents incorporated in it by reference. Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991); see also Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) ("even where a document is not incorporated by reference [in the complaint], the court may nevertheless consider it [on a Rule 12(b)(6) motion without converting the motion to one for summary judgment] where the complaint 'relies heavily upon its terms and effect,' which renders the document 'integral' to the complaint," quoting Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995)). The Court may also consider documents "possessed by or known to the plaintiff and upon which [he] relied in bringing the suit." ASTI Communications, Inc. v. The Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). In addition, "the mandate to read the papers of pro se litigants generously makes it appropriate to consider a plaintiff's papers in opposition to a defendant's motion to dismiss as effectively amending the allegations of the plaintiff's complaint, to the extent that those factual allegations are consistent with the allegations of the Plaintiff's complaint." Robles v. Bleau, No. 07-CV-0464, 2008 WL 4693153, at * 6 and n.41 (N.D.N.Y. Oct. 22, 2008) (collecting cases).
The Court will provide Plaintiff with copies of all unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Where a pro se complaint fails to state a cause of action, the court generally "should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation and internal quotation marks omitted). An opportunity to amend is not required where "the problem with [the plaintiff's] causes of action is substantive" such that "better pleading will not cure it." Cuoco, 222 F.3d at 112 (citation omitted).
IV. EIGHTH AMENDMENT MEDICAL INDIFFERENCE CLAIM AGAINST DR. MANDALAYWALA
A. Legal Standard
Claims that prison officials have intentionally disregarded an inmate's serious medical needs fall under the Eighth Amendment umbrella of protection from the imposition of cruel and unusual punishments. Farmer v. Brennan, 511 U.S. 825, 832 (1994). Prison officials must ensure that inmates receive adequate medical care. Id. (citing Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). A claim that a prison official has intentionally disregarded an inmate's serious medical needs has both objective and subjective elements. See Hathaway v. Coughlin II, 99 F.3d 550, 553 (2d Cir. 1996). The plaintiff must show that he had a serious medical condition and that it was met with deliberate indifference. Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998). "The objective 'medical need' element measures the severity of the alleged deprivation, while the subjective 'deliberate indifference' element ensures that the defendant prison official acted with a sufficiently culpable state of mind." Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003) (citation omitted). "[N]ot every lapse in medical care is a constitutional wrong. Rather, a prison official violates the Eighth Amendment only when the two requirements are met." Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006) (citation and internal quotation marks omitted).
A "serious medical condition" is "a condition of urgency, one that may produce death, degeneration, or extreme pain." Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J. dissenting) (citations omitted); accord Hathaway v. Coughlin I, 37 F.3d 63, 66 (2d Cir. 1994); Chance,143 F.3d at 702. Factors informing the inquiry into whether an alleged medical condition is sufficiently serious include, but are not limited to: (1) the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; (2) the presence of a medical condition that significantly affects an individual's daily activities; and (3) the existence of chronic and substantial pain. Chance,143 F.3d at 702-03.
"[D]eliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain." Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citation and internal quotation marks omitted). To satisfy the subjective element of deliberate indifference, a plaintiff must establish the equivalent of criminal recklessness, i.e., "that the charged official act[ed] or fail[ed] to act while actually aware of a substantial risk that serious inmate harm will result." Salahuddin, 467 F.3d at 280; see also Farmer, 511 U.S. at 837 ("[T]he official must be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.").
B. Analysis
The Court assumes, solely for purposes of this motion, that Plaintiff's stroke constituted a serious medical condition. Furthermore, for the reasons explained below, the Court finds that Plaintiff has made a plausible showing, for purposes of this motion, that Dr. Mandalaywala was personally involved in Plaintiff's post-stroke care and treatment, including the decision not to provide Plaintiff with physical or speech therapy and failing to grant his request for a flats permit for several weeks.
1. Physical and Speech Therapy
Plaintiff's Eighth Amendment medical indifference claim against Dr. Mandalaywala with regard to his failure to receive physical or speech therapy is based upon Dr. Mandalaywala's alleged receipt of documents from Albany Medical indicating that Plaintiff needed physical and speech therapy, and the Defendant's failure to order the therapy upon Plaintiff's return to Upstate. (Dkt. No. 15 at 9.)
In seeking dismissal of the medical indifference claim, Dr. Mandalaywala argues that "Plaintiff's physical and occupational therapy was documented as having been discontinued on October 20, 2016, prior to his return to Upstate C.F." (Dkt. No. 24-1 at 9.) The Defendant further argues that "Plaintiff identifies no record that prescribed speech therapy upon his return to Upstate C.F." Id. Dr. Mandalaywala's argument with regard to physical therapy finds support in the October 20, 2016, edit on the Discharge Summary annexed as an exhibit to Plaintiff's second amended complaint. (Dkt. No. 15-1 at 20.) The edit to the Discharge Summary by NP Rasoully notes that physical therapy and occupational therapy were discontinued on October 20, 2016. Id. The Upstate progress note of October 21, 2016, suggesting that Plaintiff was only going to continue to have speech therapy upon his return to Upstate, lends support to Dr. Mandalaywala's argument with regard to physical and occupational therapy. Id. at 24.
In his opposition to Defendants' motion, Plaintiff contends that the edit merely referred to discontinuance of physical and occupational therapy at the hospital because Plaintiff was being discharged and did not constitute a revision to the Discharge Summary directing that he receive physical and occupational therapy. (Dkt. No. 33 at 3.) Given the requirement on a Rule 12(b)(6) motion that the court accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor, Hernandez, 18 F.3d at 136, the Court finds solely for purposes of Defendants' motion that however unlikely, Plaintiff's interpretation of the edit with regard to physical and occupational therapy is not entirely implausible.
Moreover, contrary to Defendant's assertion that Plaintiff has failed to identify any document prescribing speech therapy upon his return to Upstate, the Discharge Summary specifically states that "[t]he patient is to continue to work with speech and swallowing pathologist given his aphalga . . . ." Id. at 6. Unlike the statement regarding physical and occupational therapy, there is no indication that the instruction with regard to Plaintiff continuing to work with a speech pathologist was ever edited.
2. Assignment on the Flats
Contrary to the October 21, 2016, Upstate progress notes regarding Plaintiff's ability to ambulate following his stroke, Plaintiff claims that his whole right side was debilitated and he walked with extreme difficulty and pain. (Dkt. No. 33 at 4.) Plaintiff also claims that it was Dr. Mandalaywala who discharged him to his cell on October 23, 2016, and that he was not placed in the flats until January 10, 2017, despite his request to Dr. Mandalaywala at the time he left the infirmary and continued requests to be placed in the flats. Id. at 4-5. The fact that Plaintiff was ultimately placed in the flats allows the Court to infer for purposes of this motion that Plaintiff's physical condition warranted the placement.
The progress notes indicate that Dr. Mandalaywala was to be the one responsible for discharging Plaintiff from the infirmary, thus offering some support to Plaintiff's claim that the doctor was involved in decisions regarding his care. (Dkt. No. 15-1 at 24.) In addition, as noted above, Plaintiff contends that Dr. Mandalaywala was the primary and supervising physician at Upstate. (Dkt. No. 33 at 4.)
3. Deliberate Indifference
The Court, while recognizing the high standard that must ultimately be met to support a deliberate indifference claim, declines to recommend dismissal of Plaintiff's Eighth Amendment medical indifference claim at the motion to dismiss stage before Plaintiff has had an opportunity to conduct discovery on the issue of whether Dr. Mandalaywala acted with deliberate indifference in failing to direct that he be provided with physical or speech therapy and be placed in the flats. See Chance, 143 F.3d at 703-04) (reversing district court's dismissal of medical indifference claim at the12(b)(6) stage because "[w]hether a course of treatment was the product of sound medical judgment, negligence, or deliberate indifference depends in the facts of the case . . . . It may be that [plaintiff] has no proof whatsoever of this improper motive, and that lack of proof may become apparent at summary judgment. But even if we think it highly unlikely that [plaintiff] will be able to prove his allegations, that fact does not justify dismissal for failure to state a claim . . . .") (citations and internal quotation marks omitted); Jones v. Westchester Cnty. Dept. of Corrs. Medical Dept., 557 F. Supp. 2d 408, 416 (S.D.N.Y. 2008) ("Whatever the ultimate merits of Plaintiff's claims, Defendants have jumped the gun by filing a pre-answer motion to dismiss. Many of the material questions in this case, such as 'What care is reasonable in these circumstances,' . . . are not ripe for adjudication on the basis of the complaint and its appended materials. It may become clear, at summary judgment or at some later stage in the litigation, that these claims are not adequately supported. But at the 12(b)(6) stage, we must accept the plaintiff's allegations as true . . . .") (citation and internal quotation marks omitted).
Therefore, the Court recommends that Dr. Mandalaywala's Rule 12(b)(6) motion be denied, and Plaintiff be given an opportunity to engage in reasonable discovery.
V. PLAINTIFF'S FAILURE TO EXHAUST EIGHTH AMENDMENT EXCESSIVE FORCE CLAIM AGAINST DEFENDANT BENNETT
A. Legal Standard for Exhaustion of § 1983 Prisoner Claims
Under the PLRA, "[n]o action shall be brought with respect to prison conditions under section 1983 . . . 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); see also Ross v. Blake, ___ U.S. ___, 136 S. Ct. 1850, 1854-55 (2016). "[T]he 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." Porter v. Nussle, 534 U.S. 516, 532 (2002). "There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court." Jones v. Bock, 549 U.S. 199, 211 (2007).
The PLRA requires "proper exhaustion," which means using all steps required by the administrative review process applicable to the institution in which an inmate is confined and doing so properly. Jones, 549 U.S. at 218 (citing Woodford v. Ngo, 548 U.S. 81, 88 (2006)); see also Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (exhaustion necessitates "using all steps that the [government] agency holds out, and doing so properly") (internal quotations omitted). In New York State prisons, DOCCS has a well-established three-step IGP. N.Y. Comp. Codes R. & Regs. ("N.Y.C.R.R.") tit. 7, § 701.5.
First, an inmate must file a complaint with the facility IGP clerk within twenty-one days of the alleged occurrence. Id. § 701.5(a)(1). A representative of the facility's Inmate Grievance Resolution Committee ("IGRC") has sixteen calendar days from receipt of the grievance to informally resolve the issue. Id. § 701.5(b)(1). If there is no such informal resolution, the full IGRC conducts a hearing within sixteen calendar days of receipt of the grievance, id. § 701.5(b)(2), and issues a written decision within two working days of the conclusion of the hearing. Id. § 701.5(b)(3).
Second, a grievant may appeal the IGRC's decision to the facility superintendent within seven calendar days of receipt of the IGRC's written decision. Id. § 701.5(c)(1). If the grievance involves an institutional issue (as opposed to a DOCCS-wide policy issue), the superintendent must issue a written decision within twenty calendar days of receipt of the grievant's appeal. Id. § 701.5(c)(3)(ii). Grievances regarding DOCCS-wide policy issues are forwarded directly to the Central Office Review Committee ("CORC") for a decision under the process applicable to the third step. Id. § 701.5(c)(3)(i).
Third, a grievant may appeal to CORC within seven working days of receipt of the superintendent's written decision. Id. § 701.5(d)(1)(i). CORC is to render a written decision within thirty calendar days of receipt of the appeal. Id. § 701.5(d)(3)(ii).
There are special procedures that may be used when, as in this case, the relevant grievances are code 49 involving staff misconduct. Id. § 701.8. A grievance alleging staff misconduct, once it is given a number and recorded, must be sent directly to the superintendent, and the superintendent must issue a decision within twenty-five days. Id. § 701.8(f). If the grievant wishes to appeal a decision by the Superintendent to CORC, he must file a notice of decision to appeal with the inmate grievance clerk at the bottom of the Superintendent's decision within seven days of receipt of the decision. Id. § 701.8(h). CORC is required to render a written decision within thirty calendar days of receipt of the appeal. Id. § 701.8(i) (incorporating § 701.5).
As set forth above, at each step of the IGP, a decision must be rendered within a specified time period. "Where the IGRC and/or superintendent do not timely respond, an inmate must appeal 'to the next step,'" assuming there is another step in the IGP. Eleby v. Smith, No. 9:15-CV-0281 (TJM/DEP), 2017 WL 986123, at *4 (N.D.N.Y. Jan. 9, 2017) (quoting 7 N.Y.C.R.R. § 701.6(g)(2)); see also Smith v. Kelly, 985 F. Supp. 2d 275, 281 (N.D.N.Y. 2013) ("[A]ny failure by the IGRC or the superintendent to timely respond to a grievance . . . can and must be appealed to the next level . . . to complete the grievance process.").
Generally, if a plaintiff fails to follow each of the required steps of the IGP, including receipt of a decision from CORC, prior to commencing litigation, he has failed to exhaust his administrative remedies as required under the PLRA. See Ruggiero v. Cnty. of Orange, 467 F.3d 170, 176 (2d Cir. 2006) ("[T]he PLRA requires proper exhaustion, which means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits.") (internal quotations and citations omitted)).
While the PLRA mandates exhaustion of administrative remedies, it also "contains its own, textual exception to mandatory exhaustion." Ross, 136 S. Ct. at 1858. More specifically, section 1997e(a) provides that only those administrative remedies that "are available" must first be exhausted. 42 U.S.C. § 1997e(a); see also Ross, 136 S. Ct. at 1858 ("[T]he exhaustion requirement hinges on the availability of administrative remedies[.]" (quotations and citations omitted). In the PLRA context, the Supreme Court has determined that "availability" means that "an inmate is required to exhaust those, but only those, grievance procedures that are capable of use to obtain some relief for the action complained of." Ross, 136 S. Ct. at 1859 (quotations and internal citations omitted).
The Ross Court identified three circumstances in which a court may find that internal administrative remedies are not available to prisoners under the PLRA. Id. at 1859-60. First, "an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Id. at 1859. "Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id. Finally, an administrative remedy is not "available" when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1860.
In Williams v. Corr. Officer Priatno, 829 F.3d 118, 123 n.2 (2d Cir. 2016), the Second Circuit noted that, "the three circumstances discussed in Ross do not appear to be exhaustive[.]" The illustrations of unavailability in Ross nonetheless guide the Court's inquiry. See Mena v. City of New York, No. 13-CV-2430 (RJS), 2016 WL 3948100, at *4 (S.D.N.Y. July 19, 2016).
Because non-exhaustion is an affirmative defense, defendants bear the burden of showing that a prisoner has failed to satisfy the exhaustion requirements. See Jones, 549 U.S. at 216; Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004). Plaintiff must then establish that the IGP grievance procedure was unavailable to him under Ross. Jones, 549 U.S. at 216.
B. Plaintiff's Failure to Exhaust
In Williams, 829 F.3d at 122, the Second Circuit instructed that while "[f]ailure to exhaust administrative remedies is an affirmative defense," a district court "may dismiss a complaint for failure to exhaust administrative remedies if it is clear on the face of the complaint that the plaintiff did not satisfy the PLRA exhaustion requirement." Defendants correctly argue that the allegation in Plaintiff's second amended complaint that on December 27, 2016, after his return to Upstate, he submitted a grievance for the physical abuse he received at Great Meadow and never received a response, makes clear that Plaintiff did not exhaust his administrative remedies under the PLRA with regard to the excessive force claim against Bennett. (Dkt. Nos. 15 at 9; 24-1 at 14.)
In his sworn opposition to Defendants' motion to dismiss, however, Plaintiff elaborated on his allegedly unsuccessful efforts with regard to filing and following up on the grievance involving excessive force at Great Meadow. According to Plaintiff, on December 27, 2016, after his return to Upstate, it took him hours to write the grievance because he was in severe pain, and he was unable to make a copy of the grievance because he was in keeplock. (Dkt. No. 33 at 8.) Plaintiff claims to have filed the grievance at Upstate and to have been told at Upstate that the grievance had been sent to Great Meadow. Id. When Plaintiff inquired as to the progress of the grievance after a few weeks, he was told by the Upstate IGRC that it was out of their hands and that it would be futile to send another grievance because at that point more than twenty-one days had passed since the occurrence. Id. Plaintiff claims to have then submitted a letter to the superintendent at Upstate regarding the grievance and to have received no response. Id. Plaintiff also claims to have sent a letter regarding the grievance to the superintendent at Great Meadow with no response. Id. at 9. On September 11, 2018, Plaintiff submitted a FOIL request for a copy of a grievance dated on or around December 27, 2016, and was informed in response that the record he had requested did not exist at Great Meadow. Id. at 21. Plaintiff claims that when you are grieving issues at a facility where you are not residing, there is no way to appeal to CORC without a prior decision on the grievance. Id.
The Court has considered Plaintiff's sworn opposition to Defendants' motion as effectively amending the allegations in his second amended complaint to allege unavailability of the IGP. See Robles, 2008 WL 4693153, at *6 and n.41. In Williams, the Second Circuit reversed the district court's dismissal of the plaintiff's complaint for failure to state a claim on the basis of exhaustion when the plaintiff alleged his grievance was never filed. 829 F.3d at 121. Because, as in this case, the defendant's motion was one to dismiss for failure to state a claim, the Second Circuit accepted "as true [plaintiff's] allegation that the corrections officer never filed his grievance" and rejected defendant's argument that the plaintiff still could have appealed through to CORC under the IGP on the grounds that the appeal process was prohibitively opaque in those cases where a grievance had not been filed. Id. See also Grayson v. C.O. Courtney, No. 9:16-CV-1118 (GLS/ATB), 2017 WL 4083146, at *3-4 (N.D.N.Y. Aug. 22, 2017) (recommending denial of motion to dismiss for failure to state a claim where the allegations in the complaint could be construed to state that the grievance was never filed, thereby making it unclear from the face of the complaint whether failure to exhaust could be excused as unavailable); Shaw v. Ortiz, No. 15-CV-8964 (KMK), 2016 WL 7410722, at * 5 (S.D.N.Y. Dec. 21, 2016) (denial of motion to dismiss for failure to exhaust where accepting the allegations of the complaint as true, the court could not determine from the face of the complaint whether administrative remedies were actually available).
In this case, in light of the allegations in Plaintiff's complaint, as amended by his opposition to Defendants' motion, which have made it unclear from the face of the pleading whether Plaintiff's failure to exhaust may be excused on availability grounds, the Court recommends denial of Defendant Bennett's motion to dismiss for failure to exhaust. The denial should be without prejudice to Bennett filing a properly supported motion for summary judgment regarding the exhaustion issue.
ACCORDINGLY, it is hereby
RECOMMENDED that Defendants' Rule 12(b)(6) motion to dismiss Plaintiff's second amended complaint (Dkt. No. 24) be DENIED; and it is hereby
ORDERED that the Clerk's Office provide Plaintiff with copies of all unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: December 6, 2018
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge