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denying motion on exhaustion grounds because the "plaintiff pursued an administrative remedy through the channel recommended by the prison superintendent, and after having tried for months unsuccessfully to learn something about the investigation, he turned to the federal court for relief. By all indications from defendants' stonewalling, plaintiff appeared unsuccessful in redressing his complaint against the prison authorities. '[I]t would make little sense to demand Plaintiff jump through the further elaborate hoops of the IGP procedure'"
Summary of this case from Rosales v. LaValleyOpinion
No. 01 Civ. 3251(HB)
February 26, 2003
OPINION ORDER
Defendants, via the State Attorney General, move for summary judgment to dismiss plaintiff's complaint. For the following reasons, the defendants' motion with respect to dismissing: (1) the complaint for failure to exhaust administrative remedies, (2) defendant Sergeant Schneider and eight other named defendants, and (3) the claim of conspiracy under § 1983 is DENIED, and defendants' motion in regard to the other named defendants, which plaintiff could not identify from a photographic line-up and the § 1985 claim is GRANTED.
I. INTRODUCTION
The Court assumes familiarity with the discussion of the background facts as reviewed in O'Connor v. Featherston, 2002 WL 818085 (S.D.N.Y. Apr. 29, 2002), thus only a cursory review of the facts is provided here. Plaintiff contends that defendant Lawrence Featherston, a correctional officer, physically assaulted him while awaiting processing at the Downstate Correctional Facility in Fishkill, New York. Defendant John Schneider, along with other correctional officers allegedly knew of the assault as it occurred, but failed to intercede to protect plaintiff. Following the alleged incident, plaintiff purportedly attempted to lodge a formal complaint through the Inmate Grievance Program ("IGP") and request investigation through the prison superintendent and Inspector General. The complaint filed through the IGP apparently was lost and nothing was heard from the Inspector General's investigation until nearly eight months elapsed from the time of the incident. By February 2001, plaintiff had filed the instant lawsuit. During discovery, the assistant attorney general showed plaintiff fourteen pictures of the named defendants along with pictures of five "fillers" who were not DOCS employees. Plaintiff identified only nine defendants from the picture line up, including Sergeant John Schneider, William Loven, Joseph McGue, Jeffrey Jacques, Andrew Jones, Barry Anderson, James Williams, Alvin Reed, and Brendan Bell.
Defendants argue that plaintiff's complaint should be dismissed under Fed.R.Civ.P. 12(b)(6) for plaintiff's failure to exhaust his administrative remedies as required by the Prison Litigation Reform Act of 1995 ("PLRA"). In the alternative, defendants move to dismiss the complaint against all of the defendants except for Lawrence Featherston, because they were not involved in the alleged assault. In addition, defendants move to dismiss plaintiff's complaint because he has not alleged sufficient facts for a conspiracy claim under 42 U.S.C. § 1983 or 1985.
Assuming I find that plaintiff has satisfied the administrative exhaustion requirement of the PLRA, defendants "agree that there is a genuine issue of material fact regarding the claim against Featherston." Def. Reply Mem. at 5-6.
II. DISCUSSION
1. Exhaustion of Administrative Remedies
Defendants assert for the third time that plaintiff's complaint should be dismissed because he had failed to exhaust administrative remedies. New York's State Department of Correctional Services ("DOCS") has a well documented formal Inmate Grievance Procedure ("IGP") that includes: first, filing a complaint with the facility's Inmate Grievance Review Committee; second, appealing to the facility superintendent, and lastly, appealing to the DOCS Central Office Review Committee ("CORC"). 7 N.Y.C.R.R. 701.7; Hemphill v. New York, 198 F. Supp.2d 546, 548 (S.D.N.Y. 2002). The PLRA provides in relevant part:
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). According to Thomas G. Eagen, the Director of the Inmate Grievance Program ("IGP"), "[i]t is important to note that the [IGP] supplements existing formal and informal channels of problem resolution, it does not replace them ." Houze v. Segarra, 217 F. Supp.2d 394, 398 (S.D.N.Y. 2002); see 7 N.Y.C.R.R. § 701.1. "Resolution of [a dispute involving prison conditions] through informal channels satisfies the exhaustion requirement, as, under the administrative scheme applicable to New York prisoners grieving through informal channels is an available remedy." Marvin v. Goord, 255 F.3d 40, 43 n. 3 (2d Cir. 2001) (citing 7 N.Y.C.R.R. § 701.1). Thus, contrary to defendants' contention, the IGP does not preempt but rather merely supplements alternative available administrative remedies. Gadson v. Goord, 2002 WL 982393, at *3 (N.D.N.Y. May 10, 2002). Defendants on these papers appear not to press this issue perhaps as a consequence of McGinnis' advice to plaintiff that he pursue his complaint through the Inspector General. See Nowve Decl. Exh. Q.
Rather, defendants pins their hopes on O'Connor's "revised" letter in support of his opposition to defendants' motion to dismiss, which he allegedly wrote but did not send to the superintendent. Defendants Motion for Summary Judgment ("MSJ") Mem. at 13. According to defendants, the letter actually sent to Superintendent McGinnis "does not claim that the medical restriction `prevented' him from going to the library." Id. at 13. In the actual letter sent, O'Connor indicates that he was put on medical restriction for fourteen days, and was not able throughout that period to obtain a grievance form, despite making numerous requests for the form. Nowve Decl. Exh. F. Only after leaving medical restriction was he able to purportedly submit a grievance form. Id. Although the letter submitted by plaintiff in support of his opposition to defendant's earlier motion to dismiss differs in form from that actually submitted to McGinnis, cf. Nowve Decl. Exh. F to Exh. B, the letters do not differ substantially in substance. Defendants suggest that I should draw an adverse inference from plaintiff's "revised" letter and conclude that the DOCS medical personnel never prevented him from filing a timely grievance. I disagree because I must draw all inferences in a light most favorable to the non-movant, i.e., the plaintiff, and there are genuine issues of material fact as to the reasons why plaintiff submitted the "revised" letter. Certainly, viewing the allegations in plaintiff's letter to the superintendent in a light most favorable to him, a juror might reasonable conclude that he at least took the first step required to begin an investigation under the IGP, which were subsequently thwarted by defendants' inaction.
Defendants further contend that there is "no reasonable" explanation for plaintiff's failure to file a grievance through the IGP after being advised in the August 2, 2000 letter sent by New York State Commissioner of Correction Goldrick to pursue his claim through that forum. Nowve Decl. Exh. P. Defendants ignore the fact that plaintiff also received a letter from Superintendent McGinnis that admittedly "sought to address plaintiff's allegations of wrongdoing," i.e., assault by a prison guard, Defendant's MSJ Mem. at 13, and advised plaintiff to pursue his claim through the Inspector General, rather than the IGP. See Nowve Decl. Exh. Q. Despite Superintendent McGinnis' letter, defendants contend that it was unreasonable for plaintiff to have not exhausted administrative remedies through the IGP as suggested by the commissioner. Essentially, defendants suggest that McGinnis' recommendation should be disregarded. I decline to do so. Genuine issues of material fact remain in regard to whether it was reasonable for plaintiff to have attempted to exhaust his administrative remedies with the Inspector General, rather than the IGP, in light of the conflicting letters by the superintendent and Commissioner of Corrections. See Rodriguez v. Hahn, 2000 WL 1738424, at *2 (S.D.N.Y. Nov. 22, 2000).
Defendants additionally argue that plaintiff filed his lawsuit on February 15, 2001, about two weeks before the Inspector General final investigative reports issued, and thus he could not have exhausted his remedies before filing his lawsuit. Defendants urge that I should overlook the fact that plaintiff wrote multiple letters to Douglas Holland of the DOCS' Internal Affairs Unit in September and November of 2000 to inquire about the status of the Inspector General's investigation. O'Connor, 2002 WL 818085, at *3. Sadly and hardly to the credit of DOCS, there is no indication whatsoever that any of his letters were ever answered. In addition, after DOCS rejected plaintiff's request under the Freedom of Information Law ("FOIL") for information concerning the investigation, he appealed the denial to DOCS, which referred the matter to the department's Counsels Office. Nowve Decl. Exh. R. Again, there is no indication that his appeal was ever answered by that office either. As I noted in my earlier opinion, Porter v. Nussle, 534 U.S. 516 (2002) (or for that matter Burch v. Churner, 532 U.S. 731, 741 n. 6 (2001)), is not dispositive of when "administrative remedies as are available are exhausted." O'Connor, 2002 WL 818085, at *2. Defendants attempt to conjure a parade of horribles if I deemed plaintiffs reasonable attempts to exhaust administrative remedies sufficient to meet the PLRA exhaustion requirement. 42 U.S.C. § 1997e(a). I do not share defendants' concerns. Here, plaintiff pursued an administrative remedy through the channel recommended by the prison superintendent, and after having tried for months unsuccessfully to learn something about the investigation, he turned to the federal court for relief. By all indications from defendants' stonewalling, plaintiff appeared unsuccessful in redressing his complaint against the prison authorities. "[I]t would make little sense to demand Plaintiff jump through the further elaborate hoops of the IGP procedure." Perez v. Blot, 195 F. Supp.2d 539, 546 (S.D.N.Y. 2002). An inmate should not be required to additionally complain through collateral administrative proceedings after his grievances have been apparently addressed and, by all appearances, rebuffed. See Marvin, 255 F.3d at 43 n. 3; Heath v. Saddlemire, 2002 WL 31242204, at *13-14 (N.D.N.Y. Oct. 7, 2002) (holding that steps taken by plaintiff to redress his grievance, which lead to an investigation by the prison superintendent and the Inspector General, sufficed to defeat a motion for summary judgment for failure to exhaust administrative remedies). The defendants cannot be heard to complain that plaintiff prematurely filed the instant lawsuit, when, viewing the evidence in a light most favorable to plaintiff, they appear at fault for creating the false impression that plaintiff's complaint would not be resolved. See Gadson, 2002 WL 982393, at *3 (acknowledging that the prison authorities cannot both obstruct and frustrate inmate's pursuit of administrative remedies and then claim inmate did not properly exhaust administrative remedies). Defendants' motion to have the complaint dismissed for failure to exhaust administrative remedies is denied.
Rather than obfuscation, the attorney general might think seriously about an investigation of the DOCS grievance procedure and how it might work more smoothly.
2. Unidentified Defendants
Next, defendants argue that defendants, David Correia, John Johnson, Audrey Moyer, Cornelius Bremer and Alton Walden should be dismissed because plaintiff could not identify from a photographic lineup whether they were personally involved in allowing the attack to take place, as alleged by plaintiff. I agree. Accordingly, these defendants that plaintiff could not identify from the photographic line-up are dismissed from this lawsuit.
3. Defendant John Schneider
Defendants further contend that defendant Sergeant John Schneider, Featherston's supervisor, although successfully identified by plaintiff in a photographic lineup, should be dismissed because he was not personally involved in the alleged assault and because he should be protected from liability by qualified immunity. For me at least, it is too early to tell. The Second Circuit set forth examples of "personal involvement":
(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); see also Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Plaintiff alleges that Schneider shared laughs with the defendant Featherston and even cheered him on while he carried out the assault. Second Amended Complaint ("SAC") at ¶¶ 4, 31. Schneider, along with all the other officers in the area, not surprisingly, deny having any knowledge of the alleged beating of plaintiff by Featherston. In view of these conflicting personal accounts, genuine issues of material remain for a jury to decide whether Schneider knew of the assault and was deliberately indifferent to it. Plaintiff's right not to be assaulted by a prison official is a "clearly established . . . right of which a reasonable person would have known," and, assuming Schneider was "personally involved" in the incident, he cannot be protected by qualified immunity. Scotto v. Almenas, 143 F.3d 105, 110 (2d. Cir. 1998). Defendants' motion to dismiss Schneider is denied.
4. Identified Defendants
As for the other eight defendants that plaintiff successfully identified from the photographic line-up, defendants argue that they should be dismissed because none of them were purportedly present in the room where the alleged attack took place. The area where the other officers were purportedly located, however, was separated in part by only a "raggedy, brown, tarp," through which some of the defendants had a direct line of sight to observe the alleged assault. Nowve Decl. Exh. A (O'Connor Depo.) at 45-46. Regardless of whether the defendants were in the same room, they allegedly knew of the beating judging from the alleged cheers heard by plaintiff "every time Featherston struck plaintiff with punches, kicks and slaps." SAC at ¶ 31. Defendants present no evidence that they made any attempt to intercede on the plaintiff's behalf. Defendants contend that the attack occurred suddenly, in any event, and thus a jury could not conclude that any of the identified defendants had sufficient time or opportunity to intervene. I disagree. Although they may turn out to be true, general issues of material fact remain surrounding the incident and whether the defendants in the vicinity did, in fact, have an opportunity to intervene but failed to do so. See O'Neill v. Krzeminiski, 839 F.2d 9, 11 (2d Cir. 1988) (holding that correctional officers bear an affirmative duty to intercede on behalf of an inmate if the officer witnesses another officer assault inmate in violation of the inmate's Eighth Amendment right.). Accordingly, defendants' summary judgment motion to dismiss the other identified defendants is denied.
5. 42 U.S.C. § 1983 and 1985
Plaintiff alleges that defendants engaged in a conspiracy to foreclose plaintiff's ability to pursue administrative remedies. Defendants contend that plaintiff failed to sufficiently allege any of the elements necessary to state a claim for conspiracy under 42 U.S.C. § 1983 or 1985. To successfully assert a § 1983 claim, plaintiff must show: (1) an agreement between two or more state actors or between a state actor and a private entity, (2) to act in concert to inflict an unconstitutional injury, and (3) an overt act done in furtherance of that goal causing harm to plaintiff. Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). Reading plaintiff's pro se pleadings liberally and viewing the factual allegations contained therein in a light most favorable to him, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam); Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001), plaintiff has shown the possibility of a conspiracy by defendants to inflict unconstitutional injury and an overt act done in furtherance of that goal. See, e.g., SAC at ¶¶ 43, 50, Plaintiff's Statement of Facts at ¶¶ 4, 7, 8, 9, 12, 13; Plaintiff's Opp. Mem. at 11-12. Accordingly, defendants' motion to dismiss plaintiff's § 1983 conspiracy claim is denied.
Defendants further argue that plaintiff's § 1985 claim fails because there are no allegations that the conspiracy was motivated by a "class" or "racial animus." Having reviewed plaintiff's pleadings, I see no allegations or argument that address this shortcoming in plaintiff's § 1985 claim. Defendants' motion to dismiss plaintiff's § 1985 conspiracy claim is granted.
III. CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment to dismiss defendants David Correia, John Johnson, Audrey Moyer, Cornelius Bremer and Alton Walden and the § 1985 conspiracy claim is granted, but defendants' motion to dismiss the other defendants and other claims is denied. Trial will commence March 11, 2003 and all pretrial submissions are due March 2, 2003, in accordance with my local rules. The attorney general will insure that all subpoenas for plaintiff and defendants are on my desk for signature in time for service and so as to cause the least inconvenience to DOCS and the individuals concerned.
SO ORDERED