Opinion
00 Civ. 8589 (RCC)(THK) (Pro Se)
October 3, 2003
OPINION AND ORDER Adopting Report and Recommendation
Plaintiff Vito Rodriguez ("Plaintiff), appearing pro se, filed this § 1983 action against defendants Sergeant Richard A. Ward, D. Bissonette, T. Nietzel, and C. Mitchell ("Defendants"). Plaintiff alleged that Defendants subjected him to excessive force and failed to provide him with adequate medical care while he was an inmate at Green Haven Correctional Facility. Defendants moved for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. Defendants argue that Plaintiff is barred from bringing this action in federal court because he did not first exhaust his administrative remedies as required by the Prison Litigation Reform Act of 1996 (" PLRA"), and, in the alternative, that Plaintiff has failed to demonstrate that Sergeant Ward and Officer Nietzel were involved in the use of excessive force, or that Plaintiff's constitutional rights were violated by the alleged deprivation of medical care. Plaintiff concedes that his claims of excessive force against Defendant Nietzel should be dismissed and that he is not asserting a claim of constitutionally inadequate medical treatment.
In a Report and Recommendation ("Report") dated December 4, 2002, Magistrate Judge Katz recommended that Defendants' motion for summary judgment be granted and that Plaintiff's excessive force claim against Defendants Ward, Bissonette, and Mitchell be dismissed without prejudice due to Plaintiff's failure to exhaust his administrative remedies. The Report additionally recommended that Plaintiff's claim of excessive force against Nietzel, and his claim of inadequate medical care, be dismissed with prejudice. Having considered Plaintiff's objections to the Report, this Court adopts Judge Katz's Report for the reasons stated below.
The background of this complaint is set forth in detail in the Report and therefore is only briefly recounted herein.
Plaintiff alleges that on January 9, 2000, while incarcerated at Green Haven Correctional Facility, he was taken to a cell by Defendants Ward, Bissonette, and Mitchell, and that Defendants Bissonette and Mitchell violently pushed Plaintiff face-down onto the exposed springs of a cell bed. Plaintiff further alleges that Defendants Bissonette and Mitchell fell down on top of Plaintiff, causing injury to Plaintiff's face and back. According to Plaintiff, Defendants Ward, Bissonette, and Mitchell did not seek medical attention for Plaintiff, even though Plaintiff was bleeding and his injuries were obvious.
Following this encounter, Plaintiff wrote a letter to the superintendent of Green Haven Correctional Facility alleging that Defendants used excessive force against him and ignored his medical condition. The superintendent initiated an investigation which concluded that the allegations were unfounded. Upon receipt of the superintendent's conclusion, Plaintiff wrote a letter to the inspector general of the facility about the alleged excessive force and deprivation of medical care. Having received no response from the inspector general, Plaintiff subsequently initiated this action under 42 U.S.C. § 1983.
Plaintiff also filed a grievance with the Inmate Grievance Resolution Committee ("IGRC") at Green Haven Correctional Facility alleging that he was moved from Honor Block D to another cell without a decision from the honor block committee or adjustment committee. However, this grievance did not include any allegations of excessive force or deprivation of medical care.
Defendants have moved for summary judgment asserting, inter alia, that Plaintiff failed to exhaust his administrative remedies prior to initiating this suit, as required by the PLRA, 42 U.S.C. § 1997e(a). After reviewing Plaintiff's actions in reporting his grievance, Judge Katz found that Plaintiff did not follow the reporting procedures established by the New York State Department of Correctional Services. Therefore, the Report concluded that Plaintiff failed to exhaust his administrative remedies and is barred from bringing this suit in federal court pursuant to the PLRA. Accordingly, Judge Katz recommended that Defendants' motion for summary judgement be granted.
Plaintiff has filed two objections to Judge Katz's Report. First, Plaintiff argues that the Supreme Court's decision in Porter v. Nussle, 534 U.S. 516 (2002), which held that the PLRA requires an inmate to exhaust his administrative remedies prior to commencing federal suit, docs not apply to his situation because his complaint was filed before the Supreme Court announced. its decision in that case. Second, Plaintiff argues that courts have allowed inmates to file actions in federal court without requiring that the inmates first exhaust their administrative remedies. The objections to the Report are considered below.
II. DISCUSSION
A de novo standard is used to review those parts of the Report to which either party objects. See FED. R. CIV. P. 72(b); 28 U.S.C. § 636(b)(1)(c).
A. Retroactive Effect of Porter v. Nussle
In his first objection, Plaintiff asserts that his complaint was filed prior to, and is therefore exempt from, the ruling of the United States Supreme Court in Porter v. Nussle, which held that the PRLA requires an inmate to first exhaust his administrative remedies before initiating a suit in federal court. 534 U.S. 516. While it is true that Plaintiff's complaint was filed before the Supreme Court decidedNussle, "the broad exhaustion requirement announced inNussle applies with full force" to parties in Plaintiff's position. Espinal v. Goord, 2002 WL 1 585549, at *2 n. 3 (S.D.N. Y. July 17, 2002). See also Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 97 (1993) ("When [the Supreme] Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate [the] announcement of the rule."). The decision in Nussle precedes any final judgment in Plaintiff's case; Plaintiff's first objection is therefore without merit.
B. Case Law on the Prison Litigation Reform Act
Plaintiff's second objection argues that courts have allowed inmates to file actions in federal court without first exhausting their administrative remedies, despite the PRLA's restrictions. However, the cases cited by Plaintiff in support of this argument differ factually from the case at bar and do not apply for the reasons set forth below.
First, Plaintiff relies on Perez v. Blot, 195 F. Supp.2d 539 (S.D.N. Y. 2002), to argue that an inmate need not exhaust his administrative remedies before initiating a federal suit. In Perez, however, the court ruled that more evidence of the plaintiff's actions was required before the court could conclude whether the plaintiff exhausted his administrative remedies. Accordingly, the Perez court ordered the parties to continue discovery in order to establish whether the plaintiff's actions complied with the required procedures of reporting a grievance.
The evidence in the instant case conclusively demonstrates that Plaintiff did not comply with the proper reporting procedures established by the New York State Department of Correctional Services. Most notably, Plaintiff did not notify Defendant Ward's immediate supervisor about the alleged assault. Additionally, Plaintiff neglected to appeal the superintendent's conclusion to the Central Office Review Committee. Therefore, Perez does not apply because the evidence in the instant case sufficiently and conclusively demonstrates that Plaintiff failed to exhaust his administrative remedies by not following the required reporting procedures.
The remaining two cases cited by Plaintiff also differ factually from the instant case. In Morris v. Eversley, 205 F. Supp.2d 234 (S.D.N.Y. 2002), the court concluded that the plaintiff exhausted her administrative remedies before initiating suit and was therefore not barred by the PLRA. In contrast to the circumstances in this case, the plaintiff in Morris followed the required procedures by reporting the grievance to the defendant's immediate supervisor. Because Plaintiff in this case failed to report his grievance to Defendant's immediate supervisor, the Morris decision is inapplicable to this case.
Finally, Plaintiff cites Gadson v. Goord, 2002 U.S. Dist. LEXIS 8445 (N.D.N.Y 2002) in support of his argument. However, as inMorris, the Gadson court found that the plaintiff followed proper reporting procedures by reporting his grievance directly to the defendants immediate supervisor. See Gadson. 2002 U.S. Dist. LEXIS 8445, at *7. The Gadson plaintiff exhausted his administrative remedies before initiating suit and was thus not barred by the PLRA.See id. Therefore, the Gadson ruling is also inapplicable to the instant case.
III. CONCLUSION
For the foregoing reasons, this Court adopts the Report and Recommendation of Magistrate Judge Katz in its entirety. It is hereby ordered that Defendants' motion for summary judgment be granted pursuant to Rule 56(c) of the Federal Rules of Civil Procedure and that Plaintiff's excessive force claim against Defendants Ward, Bissonette, and Mitchell be dismissed without prejudice due to Plaintiff's failure to exhaust his administrative remedies. Because Plaintiff agrees to the dismissal of his excessive force claim against Defendant Nietzel, and concedes that he did not intend to assert a claim for inadequate medical care, these claims are dismissed with prejudice.