Opinion
Civil Action No. 9:17-CV-1115 (GLS/DEP)
10-03-2018
MICHAEL RESTO-OTERO, Plaintiff, v. IMAM MOHAMMAD, Defendant.
APPEARANCES: FOR PLAINTIFF: MICHAEL RESTO-OTERO, Pro Se 10-B-1849 Auburn Correctional Facility P.O. Box 618 Auburn, NY 13021 FOR DEFENDANTS: HON. BARBARA D. UNDERWOOD New York State Attorney General The Capitol Albany, NY 12224 OF COUNSEL: DAVID A. ROSENBERG, ESQ. Assistant Attorney General
APPEARANCES: FOR PLAINTIFF: MICHAEL RESTO-OTERO, Pro Se
10-B-1849
Auburn Correctional Facility
P.O. Box 618
Auburn, NY 13021 FOR DEFENDANTS: HON. BARBARA D. UNDERWOOD
New York State Attorney General
The Capitol
Albany, NY 12224 OF COUNSEL: DAVID A. ROSENBERG, ESQ.
Assistant Attorney General DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Pro se plaintiff Michael Resto-Otero, a New York State prison inmate, has commenced this civil rights action, pursuant to 42 U.S.C. § 1983, against defendant Imam Mohammad, an individual purportedly responsible for ensuring the distribution of religiously-appropriate meals at the prison facility in which plaintiff was confined at the relevant times. Plaintiff alleges that his First Amendment right to freely exercise his chosen religion was violated by defendant's failure to arrange for him to receive appropriate meals during Ramadan.
Currently pending before the court is a motion brought by defendant in which he seeks dismissal of plaintiff's complaint, based both on lack of personal involvement and plaintiff's apparent failure to fully exhaust his available administrative remedies before filing suit. For the reasons set forth below, I recommend that defendant's motion be denied. I. BACKGROUND
In light of the procedural posture of this case, the following recitation is drawn principally from plaintiff's complaint, the contents of which have been accepted as true for purposes of the pending motion. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)); see also Cooper v. Pate, 378 U.S. 546, 546 (1964). Portions of the background have also been derived from the exhibits attached to plaintiff's complaint, which may also properly be considered in connection with a dismissal motion. See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991) ("[T]he complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference."); accord, Samuels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir. 1993).
Plaintiff is currently an inmate being held in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). See generally Dkt. No. 1; see also Dkt. No. 1-1 at 1. Although he is now incarcerated at another DOCCS prison facility, at the times relevant to his claim he was confined to the Clinton Correctional Facility ("Clinton C.F."), located in Dannemora, New York. Dkt. No. 1 at 4. Plaintiff is a Muslim, having converted from the Protestant faith in 2015, and as such observes the holy month of Ramadan. See generally id.
During Ramadan, "observant Muslims fast from sun up to sun down." See Ford v. McGinnis, 352 F.3d 582, 585 (2d Cir. 2003) (discussing the general aspects of Ramadan and some of the accommodations made by DOCCS for Muslim inmates).
Plaintiff was transferred into the Clinton C.F. on June 1, 2017, Dkt. No. 1 at 4. Upon arriving there, he inquired of an unidentified corrections officer concerning the status of his Ramadan meals. Id. In response, the officer stated that he had no knowledge regarding the meals. Id.
According to plaintiff, he then wrote to defendant Mohammad, an Imam, inquiring whether Ramadan meals could be delivered to his cell. Dkt. No. 1 at 4. In response to that inquiry, defendant indicated that only inmates assigned to keeplock status are entitled to receive "feedup"—that is, eligible to have meals delivered directly to their cells. Id. at 4-5.
" 'Keeplock' is a form of administrative segregation in which the inmate is confined to his cell, deprived of participation in normal prison routine, and denied contact with other inmates." Gittens v. Lefevre, 891 F.2d 38, 39 (2d Cir. 1989); see also 7 N.Y.C.R.R. § 301.6
Approximately one week later, plaintiff was moved into keeplock status. Dkt. No. 1 at 5. When plaintiff inquired of another unidentified corrections officer about that status of his Ramadan meals, "nobody did nothing" and he did not receive his religious meals. Id. In total, plaintiff missed twenty-five religious meals during Ramadan. See generally Dkt. Nos 1, 1-1.
Plaintiff alleges that on June 5, June 12, and June 17, 2017, he authored grievances regarding the failure of prison officials to honor his request for Ramadan meals, but received no response to those complaints. Dkt. No. 1 at 5; see also Dkt. No. 1-1 at 2-4. In addition, plaintiff alleges that he wrote to the facility's Inmate Grievance Resolution Committee ("IGRC") and to the facility's superintendent regarding the issue and, as of the date of his complaint, was "still w[aiting] for [a] respon[se]." Dkt. No. 1; see also Dkt. No. 1-1 at 5. Although this allegation is absent from plaintiff's complaint, in opposition to defendant's motion plaintiff alleges that he could not have exhausted his administrative remedies because corrections officers obstructed his ability to mail his grievances. Dkt. No. 24.
Plaintiff's opposition papers are properly considered in connection with defendant's motion to dismiss only to the extent that they are consistent with the allegations in his complaint. See, e.g. Planck v. Schenectady Cnty., No. 12-CV-0336, 2012 WL 1977972, at *5 (N.D.N.Y. June 1, 2012) (Suddaby, J.) (citing cases).
As a result of defendant's actions, plaintiff was left mentally and emotionally devastated. Dkt. No. 1 at 5. As relief, plaintiff seeks an award of damages in the amount of $150,000. Id. at 6.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on October 6, 2017, by the filing of a complaint accompanied by an application for leave to proceed in forma pauperis ("IFP"). Dkt. Nos. 1, 2. Upon initial review, by decision and order dated December 21, 2017, Senior District Court Judge Gary L. Sharpe granted plaintiff IFP status and limited his claims to a free exercise cause of action under the First Amendment against defendant, dismissing various other claims set forth in plaintiff's complaint. Dkt. No.12.
Plaintiff's complaint in this action originally named "Imam Elma" as defendant. Dkt. No. 1. Defendant's name has since been corrected on the docket to "Imam Mohammad." Dkt. No. 15. The court notes that the term "imam" refers to "a Muslim spiritual leader, analogous to a priest or rabbi." Cancel v. Mazzuca, 205 F. Supp. 2d 128, 133 (S.D.N.Y. 2002).
On March 29, 2018, in lieu of answering, defendant filed a motion to dismiss plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the ground that plaintiff failed to plausibly allege Imam Mohammad's personal involvement in the constitutional violation asserted. Dkt. Nos. 21, 25. As an alternative basis for dismissal, defendant argues that plaintiff failed to exhaust his administrative remedies prior to bringing suit. Id. Plaintiff has opposed the motion. Dkt. No. 24. Defendant's motion, which is now fully briefed and ripe for determination, has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Legal Standard Governing Motions to Dismiss
A motion to dismiss a complaint, brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, calls upon a court to gauge the facial sufficiency of that pleading using a standard that, though unexacting, "demands more than an unadorned, the-defendant-unlawfully-harmed me accusation" in order to withstand scrutiny. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp., 550 U.S. at 555). Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, "a pleading must contain a 'short and plain statement of the claim showing that the pleader is entitled to relief.' " Iqbal, 556 U.S. 677-78 (quoting Fed. R. Civ. P. 8(a)(2)). While modest in its requirements, that rule commands that a complaint contain more than mere legal conclusions. See Iqbal, 556 U.S. at 679 ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.").
In deciding a Rule 12(b)(6) dismissal motion, the court must accept the material facts alleged in the complaint as true and draw all inferences in favor of the non-moving party. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Twombly, 550 U.S. at 555-56); see also Cooper v. Pate, 378 U.S. 546, 546 (1964); Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003); Burke v. Gregory, 356 F. Supp. 2d 179, 182 (N.D.N.Y. 2005) (Kahn, J.). The tenet that a court must accept as true all of the allegations contained in a complaint does not apply, however, to legal conclusions. Iqbal, 556 U.S. at 678.
To withstand a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570); see also Ruotolo v. City of N.Y., 514 F.3d 184, 188 (2d Cir. 2008). As the Second Circuit has observed, "[w]hile Twombly does not require heightened fact pleading of specifics, it does require enough facts to 'nudge plaintiffs' claims across the line from conceivable to plausible.' " In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 570) (alterations omitted).
When assessing the sufficiency of a complaint against this backdrop, particular deference should be afforded to a pro se litigant, whose complaint merits a generous construction by the court when determining whether it states a cognizable cause of action. Erickson, 551 U.S. at 94 (" '[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.' " (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976) (citation omitted)); Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) ("[W]hen a plaintiff proceeds pro se, a court is obliged to construe his pleadings liberally." (quotation marks and alterations omitted)); Kaminski v. Comm'r of Oneida Cnty. Dep't of Soc. Servs., 804 F. Supp. 2d 100, 104 (N.D.N.Y. 2011) (Hurd, J.) ("A pro se complaint must be read liberally.").
B. Personal Involvement
Plaintiff's surviving claim is against defendant Imam Mohammad, whose position with the DOCCS is not made entirely clear from either plaintiff's complaint or the parties' motion papers. In his motion, defendant argues that plaintiff has failed to allege facts plausibly suggesting his personal involvement in the conduct giving rise to his First Amendment claim. Dkt. Nos. 21, 25. In opposition, plaintiff contends that to the best of his knowledge, defendant was "a general supervisor of [plaintiff's] religious [beliefs]" and because defendant was not "supervising the right way," it caused him to miss his religious meals during Ramadan while he was housed at the Clinton C.F. Dkt. No. 24.
1. Personal Involvement Generally
"Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under [section] 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991); McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977)). As the Supreme Court has noted, a defendant may only be held accountable for his own actions under section 1983. See Ashcroft 556 U.S. at 683 ("[P]etitioners cannot be held liable unless they themselves acted on account of a constitutionally protected characteristic."). In order to prevail on a section 1983 cause of action against an individual, a plaintiff must show "a tangible connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). "To be sufficient before the law, a complaint must state precisely who did what and how such behavior is actionable under law." Hendrickson v. U.S. Attorney Gen., No. 91-CV-8135, 1994 WL 23069, at *3 (S.D.N.Y. Jan. 24, 1994).
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
In opposition to defendant's motion, plaintiff intimates that defendant should be held accountable because of his role as "a general supervisor" in connection with plaintiff's chosen religion. Dkt. No. 24. It is well-established that a defendant cannot be liable under section 1983 solely by virtue of being a supervisor, " 'and [liability] cannot rest on respondeat superior.' " Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (quoting Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003)); Wright, 21 F.3d at 501. To establish responsibility on the part of a supervisory official for a civil rights violation, a plaintiff must demonstrate that the individual (1) directly participated in the challenged conduct; (2) after learning of the violation through a report or appeal, failed to remedy the wrong; (3) created or allowed to continue a policy or custom under which unconstitutional practices occurred; (4) was grossly negligent in managing the subordinates who caused the unlawful event; or (5) failed to act on information indicating that unconstitutional acts were occurring. Iqbal v. Hasty, 490 F.3d 143, 152-53 (2d Cir. 2007), rev'd on other grounds sub nom. Ashcroft v. Iqbal, 556 U.S. 662 (2009); see also Richardson, 347 F.3d at 435; Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); Wright, 21 F.3d at 501.
Subsequent to issuance of the Second Circuit's decision in Colon, the Supreme Court addressed the question of supervisory liability in Ashcroft v. Iqbal, 556 U.S. 662 (2009). Although the issue has been discussed, the Second Circuit has declined to squarely address the impact of Iqbal upon the categories of supervisory liability addressed in Colon. See, e.g., Hogan v. Fischer, 738 F.3d 509, 519 n.3 (2d Cir. 2013) ("We express no view on the extent to which [Iqbal] may have heightened the requirements for showing a supervisor's personal involvement with respect to certain constitutional violations[.]" (citation omitted)); see also Reynolds v. Barrett, 685 F.3d 193, 206 n.14 (2d Cir. 2012) ("Iqbal has, of course, engendered conflict within our Circuit without the continuing vitality of the supervisory liability test set forth in [Colon,] . . . but the fate of Colon is not properly before us[.]").
2. Analysis
In this case, plaintiff alleges that during Ramadan, a holy month in the Islam religion when observant Muslims fast between sunrise and sunset, he was not provided with twenty-five, religiously-appropriate meals. Dkt. No. 1; see generally Ford, 352 F.3d at 585. According to plaintiff, defendant was "indifferent" and failed to "do [his] job[,]" which consisted of "call[ing] and communicat[ing] to check how many are in the list and the[ir] location so they can provide [the inmates] with [our] religious meals[.]" Dkt. No. 1 at 6 (all errors in original); see also Dkt. No. 24 at 2. In addition, defendant "failed to [direct] his time to [reassure] that [plaintiff] was fest [sic] and have [his] [religious] meals." Dkt. No. 1 at 6. As a result, plaintiff was deprived of his ability to learn about and practice his religion. See generally Dkt. Nos. 1, 1-1.
After plaintiff inquired about his meals with an unidentified corrections officer, plaintiff wrote to defendant to see if defendant could "send [him] the [Ramadan] meal" and "explain the situation[.]" Dkt. No. 1 at 4. Defendant responded that only inmates that are housed in keeplock were eligible to have Ramadan meals delivered directly to their cells. Id. at 4-5; but see Dkt No. 1-1 at 2 (noting that plaintiff was keeplock). Although plaintiff was apparently moved to keeplock the following week—and would have been eligible for "feedup" pursuant to defendant's prior correspondence—he was still not provided with the appropriate meals. Dkt. No. 1 at 5.
When I construe plaintiff's complaint liberally, as I must, I conclude, that his allegations support a plausible inference that defendant was personally involved in the failure to provide plaintiff with religiously- appropriate meals. See generally Dkt No. 1. Plaintiff does not merely allege that defendant rejected his complaint regarding the meals; rather, he alleges that defendant had direct oversight of the distribution of religious meals at the Clinton C.F. See, e.g., McKenna v. Wright, 386 F.3d 432, 437-38 (2d Cir. 2004) ("Although it is questionable whether an adjudicator's rejection of an administrative grievance would make him liable for the conduct complained of, . . . [the defendant] was properly retained in the lawsuit at this stage, not simply because he rejected the grievance, but because he is alleged [to oversee the prison program].")
In his initial decision and order, dated December 21, 2017, Senior District Judge Sharpe considered, inter alia, whether pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1), plaintiff failed to state a claim upon which relief may be granted. See generally id. Although Judge Sharpe dismissed many of plaintiff's claims, he concluded the following with respect to defendant's personal involvement:
Here, plaintiff has alleged that he wrote to Imam [Mohammad] after arriving at Clinton C.F. to ask if [Mohammad] could "send [plaintiff] the meal" and was told by [Mohammad] 'that keep block [sic] are the only ones that get feed up.' [Dkt No. 1 at 4-5]. Plaintiff further alleges that he was transferred to keeplock one week after receiving a response from [Mohammad], and thereafter continued to not receive his religious meals. Id. at 5. In addition, plaintiff alleges that it was [Mohammad's] job to 're-
asure [sic] that [plaintiff] was fest [sic] and have [his] religins [sic] meals.' Id. at 6. Liberally construed, these alleged facts plausibly suggest that [Mohammad] was personally involved in depriving plaintiff access to religious meals.Dkt. No. 12 (footnote omitted). Accordingly, Senior District Judge Sharpe previously declined to dismiss plaintiff's free exercise claim under the First Amendment for the failure to state a claim upon which relief may be granted. See generally id. As several courts have recognized, a court effectively evaluates whether a complaint "fails to state a claim upon which relief may be granted" on initial review under the same standard that governs in the case of a motion to dismiss brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See e.g., Manon v. Hall, No. 3:14-CV-1510, 2015 WL 8081945, at *3 (D. Ct. Dec. 7, 2015); Preston v. New York, 223 F. Supp. 2d 452, 462 (S.D.N.Y. 2002); Olmos v. Ryan, No. 10-CV-2564, 2013 WL 394879, at *4 (D. Ariz. Jan. 31, 2013) ("The First Amended Complaint has already been screened pursuant to 28 U.S.C. § 1915, which uses the same standard as Federal Rule of Civil procedure 12(b)(6). . . . Defendants do not cite sufficient grounds to reconsider." (internal citation omitted)). I perceive no basis at this early juncture to recommend disturbing the court's prior decision regarding this issue. The question of whether defendant was personally involved in the constitutional violation alleged by plaintiff is better suited for resolution on a motion for summary judgment, or at trial, based upon a fully developed record. Accordingly, I recommend that defendant's motion to dismiss on this ground be denied.
C. Exhaustion of Remedies
As an alternative basis for dismissal of plaintiff's complaint, defendant argues that plaintiff's free exercise claim is barred by virtue of his failure to exhaust available administrative remedies. Dkt. No. 21-1 at 8-12. In opposition to defendant's motion, plaintiff contends that administrative remedies were unavailable to him. Dkt. No. 24 at 1.
1. Exhaustion Generally
The Prison Litigation Reform Act of 1996 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), which imposes several restrictions on the ability of prisoners to maintain federal civil rights actions, expressly 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); see also Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). Section 1997e(a)'s exhaustion provision is mandatory and applies to all inmate lawsuits regarding the conditions of their confinement. Ross, 136 S. Ct. at 1856; Woodford v. Ngo, 548 U.S. 81, 84 (2006); Porter v. Nussle, 534 U.S. 516, 524, 532 (2002); Williams v. Corr. Officer Priatno, 829 F.3d 118, 122 (2d Cir. 2016). In the event a defendant establishes that the inmate-plaintiff failed to fully comply with the administrative process prior to commencing an action in federal court, the plaintiff's complaint is subject to dismissal. See Woodford, 548 U.S. at 93 ("[W]e are persuaded that the PLRA exhaustion requirement requires proper exhaustion."); see also Wilson v. McKenna, 661 F. App'x 750, 752 (2d Cir. 2016). "Proper exhaustion" requires a plaintiff to procedurally exhaust his claims by "compl[ying] with the system's critical procedural rules." Woodford, 548 U.S. at 95; accord, Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007).
While placing prison officials on notice of a grievance through less formal channels may constitute claim exhaustion " 'in a substantive sense,' " an inmate plaintiff nonetheless must meet the procedural requirement of exhausting his available administrative remedies within the appropriate grievance construct in order to satisfy the PLRA. Macias, 495 F.3d at 43 (quoting Johnson v. Testman, 380 F.3d 691, 697-98 (2d Cir. 2004) (emphasis omitted)).
In New York, the DOCCS has instituted a grievance procedure, designated as the Inmate Grievance Program ("IGP"), for use by prison inmates to lodge complaints regarding the conditions of their confinement. Williams, 829 F.3d at 119. The IGP is comprised of three steps that inmates must satisfy when they have a grievance regarding prison conditions. 7 N.Y.C.R.R. §§ 701.1, 701.5; Williams, 829 F.3d at 119. The IGP requires that an inmate first file a grievance with "the clerk" within twenty-one days of the alleged occurrence giving rise to his complaint. 7 N.Y.C.R.R. § 701.5(a)(1). "The complaint may only be filed at the facility where the inmate is housed even if it pertains to another facility." Id. Representatives of the inmate grievance resolution committee ("IGRC") have up to sixteen days after the grievance is filed to informally resolve the issue. 7 N.Y.C.R.R. § 701.5(b)(1). If there is no such informal resolution, then the full IGRC conducts a hearing within sixteen days after receipt of the grievance. 7 N.Y.C.R.R. § 701.5(b)(2).
The IGRC is comprised of "two voting inmates, two voting staff members, and a non-voting chairperson." 7 N.Y.C.R.R. § 701.4(a).
A grievant may then appeal the IGRC's decision to the facility's superintendent within seven days after receipt of the IGRC's written decision. 7 N.Y.C.R.R. § 701.5(c). The superintendent must issue a written decision within a certain number of days after receipt of the grievant's appeal. 7 N.Y.C.R.R. § 701.5(c)(3)(i), (ii).
Depending on the type of matter complained of by the inmate, the superintendent has either seven or twenty days after receipt of the appeal to issue a decision. 7 N.Y.C.R.R. § 701.5(c)(3)(i), (ii).
The third and final step of the IGP involves an appeal to the DOCCS Central Office Review Committee ("CORC"), which must be taken within seven days after an inmate receives the superintendent's written decision. 7 N.Y.C.R.R. § 701.5(d)(1)(i). The CORC is required to render a written decision within thirty days of receipt of the appeal. 7 N.Y.C.R.R. § 701.5(d)(2)(i), (ii).
Where an inmate's grievance complains of employee harassment, the grievance is forwarded directly to the superintendent, bypassing the IGRC review. 7 N.Y.C.R.R. § 701.8(b), (c). The superintendent then has twenty-five days from the date of its receipt to render a decision. 7 N.Y.C.R.R. § 701.8(g). An inmate may appeal the superintendent's decision to the CORC within seven days of its receipt. 7 N.Y.C.R.R. § 701.8(h).
As can be seen, at each step of the IGP process, a decision must be rendered within a specified time period. 7 N.Y.C.R.R. § 701.5. Where the IGRC and/or superintendent do not timely respond, an inmate is permitted to appeal "to the next step." 7 N.Y.C.R.R. § 701.6(g)(2). Generally, if a plaintiff fails to follow each of the required three steps of the above-described IGP prior to commencing litigation, he has failed to exhaust his administrative remedies as required under the PLRA. See Ruggerio 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)." (quotation marks omitted)).
While the PLRA mandates exhaustion of available 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." (quotation marks 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 (quotation marks omitted).
In Ross, the Supreme Court identified three circumstances in which a court could find that internal administrative remedies are not available to prisoners under the PLRA. Ross, 136 S. Ct. at 1859-60. Under the 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. In addition, "an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id. The Court explained that, "[i]n this situation, some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it." Id. The third scenario in which administrative remedies are deemed unavailable to prisoners is when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1860.
According to the Second Circuit, "the three circumstances discussed in Ross do not appear to be exhaustive[.]" Williams, 829 F.3d at 123 n.2.
Because failure to exhaust is an affirmative defense to a prisoner's civil rights claim, an inmate plaintiff is under no obligation to plead facts demonstrating that he has complied with the PLRA's exhaustion requirement. Jones v. Bock, 549 U.S. 199, 211-17 (2007). If, however, such an inmate-plaintiff pleads sufficient facts revealing his failure to exhaust available administrative remedies, the complaint may be dismissed for failure to state a cognizable claim. Id. at 215-16; see e.g., Weidman v. Wilcox, No. 12-CV-6524, 2014 WL 1056416, at *3 (W.D.N.Y. Mar. 17, 2014) (dismissing the plaintiff's complaint because it clearly alleged that the plaintiff failed to avail himself of the prison grievance procedure).
2. Analysis
In this case, plaintiff has plausibly alleged that the grievance procedure was effectively unavailable to him. Specifically, plaintiff contends that he filed four "different grievance[s] and [he did not] receive a response." Dkt. No. 24 at 1. Plaintiff alleges that he was in keeplock "and arguing with the officers," who were refusing to process his outgoing mail, including the grievances regarding his religious meals. Id. at 1. As a result, plaintiff claims that he "could not exhaust his administrative remedies." Id.
Notably, the Second Circuit recently observed that the regulations outlining the IGP process "only contemplate appeals of grievances that were actually filed[,]" Williams, 829 F. 3d at 124 (citing 7 N.Y.C.R.R. § 701.8(f), (g)), and "give no guidance whatsoever to an inmate whose grievance was never filed." Williams, 829 F. 3d at 124; see also id. at 126 ("In sum, the regulations plainly do not describe a mechanism for appealing a grievance that was never filed"). As a result, in Williams the Second Circuit concluded that "the grievance procedures that were technically available to [the plaintiff] are so opaque and confusing that they were, 'practically speaking, incapable of use.' " Id. at 126 (quoting Ross, 136 S. Ct. at 1859); see also Woodward v. Lytle, No. 9:16-CV-1174, 2018 WL 4643036, at *2 (N.D.N.Y. Sept. 27, 2018).
Given the circumstances of this case and the fact that the case is in its formative stage, I conclude that the issue of exhaustion is also more appropriately resolved based upon a more robust record. Accordingly, I recommend that defendant's motion to dismiss be denied.
IV. SUMMARY AND RECOMMENDATION
When plaintiff's complaint is construed liberally, it states a cognizable First Amendment free exercise claim and sufficiently implicates defendant's involvement in the violation. Turning to the issue of exhaustion, I find that the court is not currently positioned to determine whether the IGP was available to plaintiff at the relevant times, or whether instead, by their actions corrections officers effectively precluded plaintiff from availing himself of the grievance procedure, in which case the PLRA's exhaustion requirement would be excused. Accordingly, it is hereby respectfully
RECOMMENDED that defendant's motion to dismiss (Dkt. No. 21) be DENIED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
If you are proceeding pro se and are served with this report and recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the report and 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. P. 6(a)(1)(C).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
/s/_________
David E. Peebles
U.S. Magistrate Judge Dated: October 3, 2018
Syracuse, New York