Opinion
99 Civ. 0969 (SHS)
November 19, 2003
OPINION AND ORDER
Hudner Petit brings this Pro se action pursuant to 42 U.S.C. § 1983, alleging that defendants George Bender and Sergeant McDonald violated his right (1) to be free from cruel and unusual punishment pursuant to the Eighth Amendment to the U.S. Constitution and (2) to substantive due process of law pursuant to the Fourteenth Amendment. Defendants have moved (1) for reconsideration of this Court's Order reopening this action and (2) to dismiss the Amended Complaint pursuant to either Fed.R.Civ.P. 12(b)(1) or 12(b)(6) for failure to exhaust his administrative remedies as required by the Prisoner Litigation Reform Act of 1996 ("PLRA"). For the reasons set forth below, defendants' motion to dismiss is granted.
I. Background
The facts as alleged in the Amended Complaint in this action are assumed to be true for purposes of this motion and are as follows:
On September 8, 1996, Hudner Petit, an inmate at the New York Downstate Correctional Facility, was waiting in line to return from the recreation yard to his housing unit when a fight broke out between two other inmates. Without provocation, defendant George Bender, a guard, forced Petit to the ground and subjected him to physical abuse, including punching and kicking him. Bender's supervisor, defendant Sergeant McDonald, who was also present, did nothing to stop the abuse. As a result, Petit suffered seizures, migraine headaches, blurred vision, a facial laceration, pain, and emotional trauma.
Nine days later, Petit filed Grievance No. DSR 6452/96 pursuant to the Inmate Grievance Program ("IGP"). See generally N.Y. Comp.Codes R. Regs. tit. 7, §§ 701.1-701.16 (1995). That grievance was denied by the Inmate Grievance Resolution Committee ("IGRC"), and he then appealed that denial to Superintendent John McGinnis. Three weeks later, on October 8, McGinnis denied the appeal and informed Petit in writing, "If you wish to appeal this response, you must notify the Grievance Calendar Clerk within four working days." Petit then wrote a letter protesting the Superintendent's denial to the Acting Commissioner of the Department of Correctional Services, Glenn S. Goord, who referred the matter to Deputy Commissioner George J. Bartlett. On October 21, 1996, Bartlett sent Petit a letter confirming that "[t]here was no evidence found to substantiate your claim that you were abused by staff," and concluding that "[y]our transfer to Attica [Correctional Facility] on October 11, should resolve any other concerns you may have had at Downstate."
More than two years later, on February 9, 1999, Petit filed this action pursuant to 42 U.S.C. § 1983, seeking monetary and declaratory relief on the grounds that defendants' actions violated his constitutional rights. Defendants subsequently moved to dismiss the complaint on the grounds that Petit had failed to exhaust his administrative remedies as mandated by the PLRA. In an Opinion Order dated March 22, 2000, this Court granted defendants' motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b), without prejudice, subject to the action "being renewed once Petit has exhausted all administrative remedies." See Petit v. Bender, No. 99 Civ. 0969, 2000 WL 303280, at *3 (S.D.N.Y. March 22, 2000), dismissed and remanded pursuant to Nussle v. Willette, 224 F.3d 95 (2d Cir. 2000).
Petit appealed this decision to the U.S. Court of Appeals for the Second Circuit and, following that Court's August 2000 ruling in Nussle v. Willette, 224 F.3d 95 (2d Cir. 2000), that prisoners were not required to satisfy the PLRA exhaustion requirement for claims — such as this one — of excessive force, the Second Circuit dismissed Petit's appeal and remanded the action to this Court for reconsideration in light of Nussle. See Petit v. Benden 00-0112 (unpublished order) (2d Cir. February 23, 2001).
However, in February 2002, the U.S. Supreme Court reversed the decision of the Second Circuit in Nussle v. Willette and held that "the PLRA's exhaustion requirement applies to all inmate suits about prison life," including excessive force claims. See Porter v. Nussle 534 U.S. 516, 532, 122 S.Ct. 983, 992, 152 L.Ed.2d 12 (2002). Shortly after the Supreme Court's decision, defendants again moved to dismiss Petit's complaint for failure to exhaust his administrative remedies. By Order dated April 23, 2002, this Court dismissed Petit's complaint without prejudice with leave to renew once Petit had exhausted all his administrative remedies.
Prior to the April 23 Order, Petit wrote to the Central Office Review Committee ("CORC") requesting permission to file a late appeal. See Letter from Petit to CORC dated April 5, 2002 at 1-2. The statewide Director of the Inmate Grievance Program responded to Petit, advising him that he must "contact the facility IGP Supervisor with your mitigating circumstances for not filing your appeal within the time frames stipulated in Directive # 4040." Id. See Letter from Eagen to Petit dated April 22, 2002.
Petit subsequently wrote to the IGP supervisor at the Marcy Correctional Facility requesting leave to file a late appeal to CORC.See Letter from Petit to New York State Department of Correctional Services dated May 14, 2002 at 1. In response, the IGP supervisor instructed Petit to file the request with the Downstate Correctional Facility, see Letter from Thomas to Petit dated July 11, 2002, which Petit did. See Letter from Petit to Hughes dated July 16, 2002 at 1-2. In this letter, Petit explained his untimely submission by noting that at the time of the filing of his initial grievance, exhaustion of administrative remedies was not required. See id. at 1. The Downstate Correctional Facility's IGP supervisor denied Petit's request for a late appeal, stating that there were "no mitigating circumstances worthy of accepting an appeal of the Superintendent's response to DSR 6452/96 after an interval of 5 years, 9 months." Letter from Hughes to Petit dated July 23, 2002.
This Court subsequently received a letter from Petit that it construed as a motion to reopen his case pursuant to Fed.R.Civ.P. Rule 60(b). See Letter from Petit to Judge Stein dated August 14, 2002 at 1-3. By Order dated November 20, 2002, this Court granted Petit's motion and directed Petit serve an amended complaint. Petit served an amended complaint on January 6, 2003 and defendants then filed the present motion to reconsider the November 20, 2002 Order or, alternatively, to dismiss the complaint for failure to exhaust his administrative remedies.
II. Discussion
A. Motion for Reconsideration
Defendants have moved for reconsideration of this Court's November 20, 2002 Order pursuant to Local Civil Rule 6.3. That rule requires that any such motion be served "within ten (10) days after the docketing of the court's determination of the original motion." Because this motion for reconsideration was filed two months after the Order was docketed, the motion for reconsideration is denied. Moreover, a motion for reconsideration should be granted only when the moving party demonstrates that the Court has overlooked factual matters or controlling decisions that were presented to it on the underlying motion. See Local Rule 6.3; Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); Makse Jewelry Inc. v. Rock, No. 99 Civ. 11420, 2000 WL 1880335, at *1 (S.D.N.Y Dec. 29, 2000). This standard is narrowly construed and strictly applied against the moving party so as to "dissuade repetitive arguments on issues that have already been considered fully by the court." Bristol-Meyers Squibb Co. v. Rhone-Poulene Rorer, Inc., No. 96 Civ. 8833, 2000 WL 235273, at *1 (S.D.N.Y. Mar. 1, 2000).
Defendants have failed to demonstrate that this Court has overlooked factual matters or controlling decisions that were presented to it on the underlying motion. For each of these reasons, the motion for reconsideration is denied.
C. Exhaustion of Administrative Remedies
1. Legal Standard for 12(b)(6)
The Second Circuit recently determined that "failure to exhaust administrative remedies is not a jurisdictional predicate" pursuant to the PLRA. See Richardson v. Goord, 2003 U.S. App. Lexis 21389, at *2 (2d Cir. October 22, 2003) (per curiam). Accordingly, this motion for failure to exhaust all administrative remedies is analyzed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Pursuant to Rule 12(b)(6), a court may grant a motion to dismiss for failure to state a claim only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of [his] claim which would entitle [him] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The court must accept as true all of the factual allegations set out in the complaint, draw inferences from those allegations in the light most favorable to plaintiff, and construe the complaint liberally. See id. Furthermore, where a plaintiff appears pro se, the Court must "read the pleadings . . . liberally and interpret them to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999). Review is limited, and "the issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995) (quoting Scheuer v. Rhodes. 416 U.S. 232, 236, 94 So. Ct. 1683, 40 L.Ed.2d 90 (1974)). The court's function on a motion to dismiss is "not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden. 754 F.2d 1059, 1067 (2d Cir. 1985).
The Second Circuit decision in Richardson rejects the legal standard previously set forth by this Court in Harris v. Totten, 244 F. Supp.2d 229, 231-32 (S.D.N.Y. 2003).
Although a court is limited to the facts stated in the complaint, for purposes of a Rule 12(b)(6) motion, "the complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference." Int'l Audiotext Network, Inc. v. American Tel, and Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (per curiam) (quoting Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991)). Even when a document is not attached as an exhibit, the court may consider such a document where the complaint "relies heavily upon its terms and effect," rendering the document "integral" to that complaint. Id.
2. Petit Failed to Exhaust His Administrative Remedies
In order to sufficiently allege a section 1983 violation, Petit must first have exhausted his administrative remedies. The PLRA provides that "[n]o 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). In Nussle, the Supreme Court held this 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." 534 U.S. at 532, 122 S.Ct. at 992; see also Richardson, 2003 App. Lexis 21389, at *4 ("[A] prisoner must exhaust his or her administrative remedies prior to filing a claim under § 1983."). In order to exhaust his remedies, a prisoner must pursue his grievance to the highest administrative level, including all appellate remedies.See Nussle, 534 U.S. at 524, 122 S.Ct. at 988; Waters v. Schneider, No. 01 Civ. 5217, 2002 WL 727025, at *1 (S.D.N.Y., Aprl. 23, 2002) (citing Fletcher v. Haase, No. 99 Civ. 9549, 2002 WL 313799, at *1 (S.D.N.Y. Feb.27, 2002)).
Plaintiff also argues that we should not apply Nussle retroactively because his action was filed before that Supreme Court decision. Courts in this Circuit have repeatedly rejected this argument and held that claims filed prior to the Court's decision in Nussle must meet the exhaustion requirements. See, e.g., Espinal v. Goord, No. 01 Civ. 6569, 2002 WL 1585549, at *2 n. 3 (S.D.N.Y. July 17, 2002); White v. New York. No. 00 Civ. 3434, 2002 WL 31235713, at *2 (S.D.N.Y. Oct. 3, 2002);Hemphill v. New York 198 F. Supp.2d 546, 550 (S.D.N.Y. 2002).
New York's Inmate Grievance Program is a three-step inmate grievance process that prisoners must exhaust before filing a complaint in federal court. See N.Y. Correction Law § 139; N.Y. Comp.Codes R. Regs. tit. 7, § 701. First, an inmate must file a complaint with the Inmate Grievance Resolution Committee (IGRC) within 14 days of the alleged event. See N.Y. Comp. Codes R. Regs. tit. 7, § 701.7(a)(1). The IGRC must then investigate and may resolve the issue informally within seven days. See id. at § 701.7(a)(3). If there is no informal resolution, a hearing is held, and the inmate may appeal to the superintendent of the facility within four days of the IGRC's action.See id. at §§ 701.7(a)(4), (b). Finally, after receiving a response from the superintendent, the prisoner may appeal that decision to the Central Office Review Committee (CORC) within four days of its receipt.See id. at § 701.7(c). CORC, in turn, must render a decision within 20 days. See id.
Defendants' contend that Petit failed to exhaust his administrative remedies and failed to show any circumstances warranting waiver of exhaustion. These contentions are addressed in turn.
A. Formal Exhaustion
In the Second Circuit, formal compliance with the Inmate Grievance Program is required and an inmate must exhaust his administrative remedies even if such exhaustion would be futile or ineffective. See Beharry v. Ashcroft, 329 F.3d 51, 57-8 (2d Cir. 2003) (citing Booth v. Churner. 532 US. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001) (courts may not read a futility exception into the statutory exhaustion requirement of the PLRA)); Giano v. Goord, 250 F.3d 146, 150-51 (2d Cir. 2001) (the "alleged ineffectiveness of the administrative remedies that are available, however, does not absolve a prisoner of his obligation to exhaust such remedies when Congress has specifically mandated that he do so"). Defendants contend that Petit failed to exhaust all of his administrative remedies by failing to satisfy the final step of the IGP; specifically, defendants contend Petit failed to file an appeal to CORC within four working days from receipt of the Superintendent's written denial. Petit concedes that he did not file an appeal with CORC despite being aware of the procedure. See PL Am. Compl. at 2-3. However, Petit contends that he exhausted all available remedies because the IGP supervisor's denial of his request to file a late appeal on July 23, 2002 constituted exhaustion for the purposes of the PLRA.
Courts in this jurisdiction have regularly held that failure to timely file an appeal during the administrative grievance process, followed by a subsequent denial of access by CORC due to untimeliness, will not constitute exhaustion. See Long v. Lafko 254 F. Supp.2d 444, 448 (S.D.N.Y. 2003); Rivera v. Goord. 253 F. Supp.2d 735, 749-50 (S.D.N.Y. 2003); Patterson v. Goord, No. 02 Civ. 759, 2002 WL 31640585, at *1 (SJD.N.Y. Nov. 21, 2002). But cf., Rhames v. Fed. Bureau of Prisons, 2002 WL 1268005, at *5 (S.D.N.Y. June 6, 2002) ("While it is important that prisoners comply with administrative procedures . . . rather than using any they might think sufficient . . . it is equally important that form not create a snare of forfeiture for a prisoner seeking redress for perceived violations of his constitutional rights.").
Petit's argument is unavailing. If this Court were to accept his construction of exhaustion, any inmate who failed to timely grieve or appeal a required administrative procedure could — at any subsequent point in time — simply petition the IGP supervisor in order to fulfill the exhaustion requirement. Such a construction is antithetical to the PLRA's goal of "reduc[ing] the perceived burdensome flow of prisoner litigation." McCoy v. Goord, 255 F. Supp.2d 233, 240 (S.D.N.Y. 2003); Nussle, 534 U.S. at 524-5, 122 S.Ct. at 998 ("Beyond doubt, Congress enacted § 1997e(a) to reduce the quantity and improve the quality of prisoner suits . . . [i]n some instances, corrective action taken in response to an inmate's grievance might improve prison administration and satisfy the inmate, thereby obviating the need for litigation[,] [i]n other instances, the internal review might `filter out some frivolous claims.'") (citations omitted). As Petit has not exhausted his administrative remedies, defendants' motion to dismiss should be granted.
Moreover, the PLRA requires an inmate to exhaust his administrative remedies prior to the commencement of a federal suit. See Neal 267 F.3d at 122 ("[A]llowing prisoner suits to proceed, so long as the inmate eventually fulfills the exhaustion requirement, undermines Congress1 directive to pursue administrative remedies prior to filing a complaint in federal court. . . . Subsequent exhaustion after suit is filed therefore is insufficient"). See also Saunders v. Goord. No. 98 Civ.85Ol, 2002 WL 1751341, at *2 (S.D.N.Y. July, 29 2002) ("A plaintiff must . . . meet the PLRA's exhaustion requirements at the time a complaint is filed, and cannot cure a failure of exhaustion by pursuing administrative remedies while a federal action is pending.").
B. Waiver of the Exhaustion Requirement
Petit has failed to demonstrate any arguments or evidence that would excuse his failure to exhaust the IGP's administrative remedies. Administrative remedies that have not technically been exhausted may nonetheless be waived or estopped under exceptional circumstances, such as where "(1) an inmate was led to believe by prison officials that his alleged incident was not a `grievance matter' and assured that his claims were otherwise investigated . . . (2) an inmate makes a `reasonable attempt' to exhaust his administrative remedies, especially where it is alleged that corrections officers failed to file the inmate's grievances or otherwise impeded or prevented his efforts, and (3) the state's time to respond to the grievance has expired." O'Connor v. Featherston, No. 01 Civ. 3251, 2002 WL 818085, *2-3 (S.D.N.Y. Apr. 29, 2002) (collecting cases); see also Berry v. City of New York, No. 00 Civ. 2834, 2002 WL 31045943, at *8 (S.D.N.Y. June 11, 2002) (citations omitted).
Here, Petit contends that his delay in exhausting his administrative remedies was the product of his reliance on uncertain Second Circuit caselaw concerning whether he had to exhaust his administrative remedies before bringing a suit based on excessive force. This Court is sympathetic to Petit's confusion. See Rivera, 253 F.3d at 753. However, such confusion does not suffice to meet the requisite showing of "reasonable attempt" or impermissible external obstacles that justifies this extraordinary grant. No prison official ever denied or obstructed Petit's access to the appeals process. Petit was never misled or tricked by any officer. Rather, Petit simply failed to promptly pursue his remedies. Thus, there are no mitigating circumstances that prevented Petit from exhausting his administrative remedies.
III. Conclusion
For the reasons set forth above, Petit has failed to exhaust his administrative remedies pursuant to the PLRA. As there are no exceptional circumstances present to permit waiver of the exhaustion requirement, defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim is granted and the Amended Complaint is dismissed with prejudice. See Berry v. Kerik, 345 F.3d 126, 128 (2d Cir. 2003) (affirming the dismissal with prejudice of a section 1983 complaint where the prisoner failed to exhaust his administrative remedies although the opportunity to pursue his administrative remedies was available to him); Wagnoon v. Johnson, 2003 WL 22384770, at *5 (S.D.N.Y. Oct. 20, 2003); Cole v. Miraflor 2003 WL 21710760, at *2-*3 (S.D.N.Y. July 23, 2003). The Clerk of Court is directed to enter judgment dismissing the Amended Complaint.
SO ORDERED: