Opinion
01 Civ. 9591 (KMW)(KNF)
October 25, 2002
REPORT and RECOMMENDATION
TO THE HONORABLE KIMBA M. WOOD, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
In this action brought by plaintiff pro se, pursuant to 42 U.S.C. § 1983, defendants have made a motion that the plaintiffs complaint be dismissed pursuant to Fed.R.Civ.P. 12(b)(2) and (6). Defendants contend that plaintiff failed to serve a summons and complaint timely upon several of the defendants, as required by Fed.R.Civ.P. 4(m); therefore, the defendants maintain that personal jurisdiction over those defendants is lacking. In addition, the defendants allege that the complaint fails to state a claim upon which relief may be granted, since 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. Plaintiff opposes the motion.
II. BACKGROUND
Plaintiff alleges that while he was housed at the Green Haven Correctional Facility ("GHCF") on November 5, 1998, he complained to Corrections Officer Alexander ("Alexander") about mistreatment he had received from Joan Tardio, a nurse employed at the facility. In response to this complaint, plaintiff contends that Alexander and Corrections Officer Frazier punched him in the face. Plaintiff recalls that Corrections Officers Meltz and Hahn then joined their colleagues, and all four officers punched, kicked and struck him with batons after plaintiffs wrists were placed in handcuffs behind his back. Plaintiff alleges that he was "rammed headfirst into a wall," and lost consciousness. He maintains that Sergeant Ward, who was present during the assault, revived him by slapping plaintiffs face. Thereafter, plaintiff alleges, when he regained consciousness, Sergeant Ward declared, "You want a medical problem, now you got one." Plaintiff also contends that Corrections Officers Larocque and Middleton kicked him and dragged him along two hallways, as Sergeant Wilk escorted them. Officers Larocque and Middleton then placed plaintiff in an elevator and choked him with his torn shirt, as they transported him to the GHCF Special Housing Unit ("SHU").
Plaintiff concedes in this complaint that he did not employ the prison's grievance process to complain about the assault. He explained that he determined not to do so because "[t]he damage had already been done and I feared further retaliation." Instead, plaintiff alleges, he advised GHCF's Deputy Superintendent for Safety, defendant Schneider, of the assault, orally and in writing, and also reported the assault, in writing, to a corrections captain. However, plaintiff maintains that neither the deputy superintendent nor the corrections captain advised him whether an investigation of his complaint had been conducted or the result of any investigation. In addition, plaintiff also contends that he caused the New York State Department of Correctional Services' inspector general to conduct an investigation into the assault. However, neither the extent of that investigation nor its result have been provided to the Court.
Plaintiff sought medical treatment at GHCF as a result of the assault. Plaintiff contends that a GHCF physician informed him that plaintiff had been "red flagged," and that if plaintiff continued to make complaints he might "end up in the box again." In addition, plaintiff maintains that after the assault, he was transferred from GHCF's SHU to the facility's general prison population. According to plaintiff, the practice of transferring a prisoner like him, who has been charged and found guilty of assaulting correctional personnel, from SHU to the general prison population occurs frequently at GHCF. However, plaintiff contends, the practice does not occur in other correctional facilities because placing such a prisoner into the general prison population poses a security risk for continued violence. Therefore, plaintiff alleges, his transfer from SHU to the general prison population, after his altercation with the defendant corrections officers, was designed to intimidate him and to chill his exercise of his right to file complaints.
In February 2000, plaintiff was transferred to Clinton Correctional Facility ("CCF"). Plaintiff contends that while he was receiving medical attention for a complaint of internal pain, a CCF physician "hinted at petitioner's 'red flag' status." Plaintiff recalls that the CCF physician informed him that a recommendation would be made that plaintiff be examined by a consulting medical specialist — a recommendation that plaintiff maintains must be approved by prison officials in Albany. However, the CCF physician also informed plaintiff that, "if I were you, I wouldn't push it," that is, plaintiff should not make any effort to ensure that he would be seen by a consulting medical specialist. Plaintiff contends that, based on the above, he ceased complaining to prison officials about the pain and other problems he was experiencing because he feared "further reprisal." Consequently, plaintiff alleges, he "now lives with pain, medical problems and psychological trauma from [the] Green Haven beatings." As a result of the assault plaintiff alleges he suffered at the hands of correctional personnel assigned to GHCF, he seeks compensatory and punitive damages, as well as declaratory relief.
Defendants contend that the instant complaint must be dismissed as to defendants Meltz, Tardio and Schneider because plaintiff failed to serve them with a copy of the summons and complaint timely, as he was required to do pursuant Fed.R.Civ.P. 4(m). The defendants also contend that plaintiff failed to exhaust the administrative remedies made available to him by statute (N.Y. Corr. Law § 139), and New York State Department of Correctional Services' rules and regulations (7 N.Y.C.R.R. § 701, et seq.), for redressing complaints like those that are the subject of the instant action. Therefore, perforce of the Prison Litigation Reform Act, defendants maintain that the court must dismiss plaintiffs complaint.
In response to the defendants' motion to dismiss the complaint, plaintiff submitted a writing denominated "Plaintiff's Motion in Opposition of Motion to Dismiss." No affidavit or other competent evidence was provided by plaintiff in opposition to the defendants' motion. Plaintiffs responsive writing does not address the defendants' allegation concerning plaintiffs failure to serve timely defendants Meltz, Tardio and Schneider. Moreover, plaintiff never states definitively that he exhausted all administrative remedies available to him under applicable prison rules and regulations. Instead, plaintiff merely asserts that he "filed an in-house complaint" and "initiated an investigation" by the prison system's inspector general.
III. DISCUSSION
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 Soc. Servs., No. 99 Civ. 40856, 2000 WL 1727710, at *12 (S.D.N.Y. Nov. 21, 2000); Ogbo v. New York State Dep't of Taxation 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 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).
As noted earlier in this writing, plaintiffs response to the defendants' motion did not address the claim that plaintiff failed to serve the summons and complaint on defendants Meltz, Tardio and Schneider timely. In the absence of any information from plaintiff that either refutes the defendants' allegation or explains satisfactorily his failure to serve defendants Meltz, Tardio and Schneider timely, the Court finds that granting the portion of the instant motion premised on Fed.R.Civ.P. 12(b)(2) is warranted, since personal jurisdiction over these defendants has not been obtained.
The Court is mindful that in some circumstances, it might be appropriate to enlarge the time period set forth in Fed.R.Civ.P. 4(m) and to give plaintiff an opportunity to attempt to effect service of the summons and complaint upon defendants Meltz, Tardio and Schneider. However, for reasons set forth below, the Court finds that such an exercise would be futile and, therefore, not reasonable and appropriate in the instant case.
Failure to Exhaust Administrative Remedies
This portion of the defendants' motion is premised on Fed.R.Civ.P. 12(b)(6), which permits a party to assert as a defense, through a motion, that the party's adversary has failed to state a claim upon which relief can be granted. However, 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). Therefore, defendants' reliance upon Fed.R.Civ.P. 12(b)(6) is misplaced and their defense, that plaintiff failed to exhaust administrative remedies available to him prior to instituting the instant action, is, in reality, a challenge to the court's subject matter jurisdiction. That defense may be asserted through a motion brought pursuant to Fed.R.Civ.P. 12(b)(1). See Benitez v. Straley, No. 01 Civ. 0181, 2002 WL 31093608, at *2 (S.D.N.Y. Sept. 18, 2002); Johnson v. Benheim, No. 00 Civ. 0720, 2001 WL 799569, at *4 (S.D.N.Y. July 13., 2001).
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., and plaintiffs complaint concedes that point. Neither plaintiffs "in-house" complaints to the GHCF deputy superintendent for safety and to a corrections captain, nor the investigation plaintiff alleges he caused to be initiated by the New York State Department of Correctional Services' inspector general, satisfy the exhaustion requirement found at 42 U.S.C. § 1997e(a). See Houze v. Segarra, 217 F. Supp.2d 394 (S.D.N.Y. 2002); Hemphill v. State of New York, 198 F. Supp.2d 546 (S.D.N.Y. 2002); Grey v. Sparhawk, No. 99 Civ. 9871, 2000 WL 815916, at *2 (S.D.N.Y. June 23, 2000).
Under the circumstances, the court is warranted in granting this branch of the defendants' motion also. 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).
IV. RECOMMENDATION
For the reasons set forth above, defendants' motion should be granted, however, 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 Kimba M. Wood, 500 Pearl Street, Room 1610, 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 Wood. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Am, 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).