Opinion
Civil Action No. 9:17-CV-1312 (DNH/DEP)
10-04-2018
CARLOS ABREU, Plaintiff, v. JAMES F. DONAHUE, Deputy Superintendent For Mental Health Services, Marcy Correctional Facility, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: CARLOS ABREU, Pro Se 99-A-3027 Marcy Correctional Facility P.O. Box 3600 Marcy, NY 13403 FOR DEFENDANTS: HON. BARBARA D. UNDERWOOD New York State Attorney General The Capitol Albany, NY 12224 OF COUNSEL: ERIK B. PINSONNAULT, ESQ. Assistant Attorney General
APPEARANCES: FOR PLAINTIFF: CARLOS ABREU, Pro Se
99-A-3027
Marcy Correctional Facility
P.O. Box 3600
Marcy, NY 13403 FOR DEFENDANTS: HON. BARBARA D. UNDERWOOD
New York State Attorney General
The Capitol
Albany, NY 12224 OF COUNSEL: ERIK B. PINSONNAULT, ESQ.
Assistant Attorney General DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
ORDER, REPORT, AND RECOMMENDATION
Pro se plaintiff Carlos Abreu, a New York State prison inmate and frequent federal court litigator, has commenced this action against several employees of the New York State Department of Corrections and Community Supervision ("DOCCS") and the New York State Office of Mental Health ("OMH"), pursuant to 42 U.S.C. § 1983, alleging that he was deprived of his civil rights during the course of his incarceration. Although as originally pleaded plaintiff's claims were considerably broader, they have been narrowed as a result of the court's review pursuant to 28 U.S.C. §§ 1915(e), 1915A. Plaintiff's three remaining causes of action implicate six individuals, narrowed from the nearly forty defendants named in his complaint, and are limited to an Eighth Amendment claim related to plaintiff's conditions of confinement in a residential mental health unit ("RMHU"); a First Amendment claim related to a watch imposed with respect to his mail; and a First Amendment retaliation claim.
In response to plaintiff's complaint, defendants have moved for dismissal of his remaining claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, based upon his purported failure to exhaust available administrative remedies before commencing suit. Defendants also move for dismissal of plaintiff's Eighth Amendment conditions of confinement claim on the merits, arguing that he has failed to state a cognizable cruel and unusual punishment cause of action. Plaintiff has not responded to defendants' motion. For the reasons that follow, I recommend that plaintiff's remaining Eighth Amendment conditions of confinement claim be dismissed, but that defendants' motion otherwise 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).
Plaintiff, a New York State prison inmate currently being held in the custody of the DOCCS, was confined in an RMHU at the Marcy Correctional Facility ("Marcy"), located in Marcy, New York, from October 31, 2017 through November 7, 2017. Dkt. No 1 at 3, 8, 10. He suffers from a serious mental illness and has been designated by the OMH as a service level 2. Id. at 38. As a result, when Abreu was transferred into Marcy from the Five Points Correctional Facility, he was placed directly into the facility's RMHU. Id. at 8, 10. Plaintiff's claims arise out of three distinct set of circumstances experienced during that period of confinement.
A. First Amendment Mail Tampering
Plaintiff alleges that from the date he was transferred into Marcy, Superintendent Justin J. Thomas ("Thomas") imposed a "mail watch" on Abreu's incoming and outgoing legal mail and correspondence. Dkt. No. 1 at 49. As a result of the mail watch, plaintiff's incoming mail was opened in the presence of officers, and his outgoing mail was sealed outside of plaintiff's presence. Id. at 49, 52. Plaintiff further alleges that once officers obtained his unsealed, outgoing mail, the result would be that his correspondence, including his grievances, was regularly misplaced. Id. at 49.
It is not entirely clear from plaintiff's prolix whether the "mail watch" ceased on the date the complaint was signed, or if it continued past that date. Compare Dkt. No. 1 at 49 with id. at 76.
B. Conditions of Confinement Claim
On November 6, 2017, plaintiff, who was housed in RMHU cell B-1-22, passed to a nurse a note in which he stated his intent to commit suicide. Dkt No. 1 at 17-18. Plaintiff alleges that although he wanted to be placed in an observation cell, he was told by defendant Gregory D. Mayo, a corrections officer at Marcy, that no observation cells were then available at the facility. Id. at 18. Instead of being transported to another facility with an available observation cell, plaintiff was taken to a holding cell and left there for approximately one hour, while defendant Mayo and defendant Alfred J. Maunz, a Sergeant at Marcy, removed all of plaintiff's personal effects from cell B-1-22. Id. After cell B-1-22 was completely emptied, plaintiff was forced to remove his clothes, provided only a "smock" and "two mats," and returned to cell B-1-22 for one-on-one observation. Dkt. No. 1 at 18-19. At that time, the cell was "extremely cold," with cold air being forced through the ventilation system of the cell. Id. at 19-20. In addition, defendants Mayo and Maunz obstructed plaintiff's ability to close the window of the cell, further contributing to the extreme cold. Id. at 20.
On November 7, 2017, defendant James F. Donahue, the Deputy Superintendent for Mental Health Services at Marcy, and defendant "Mr. Russo," a social worker at the prison, noticed the cold condition of plaintiff's cell during their rounds. Dkt No. 1 at 21. According to plaintiff, those two defendants "alleged that they [would try] to send [someone] to close [the window]," but no one ever arrived to remedy the problem. Id. By "lunchtime" on November 7, 2017, plaintiff was removed from his cell B-1-22 and transferred to an observation cell. Id. Plaintiff complains that the observation cell was also "extremely cold," but he was returned back to cell B-1-22 by mid-day on November 8, 2017. Id. at 21-22.
The portion of plaintiff's complaint in which he asserts an Eighth Amendment claim arising from the cold conditions in the observation cell were dismissed by District Judge David N. Hurd upon initial review of plaintiff's complaint. Dkt. No. 11 at 24-25.
C. First Amendment Retaliation
Plaintiff's final claim stems from an alleged sexual assault by defendant Sean P. Wiggins, a corrections officer at Marcy, that occurred on November 8, 2017, while plaintiff was confined to the observation cell. Dkt. No. 1 at 21, 26. On November 9, 2017, plaintiff swallowed a large metal piece from his headphones, and was escorted by, inter alia, defendant Wiggins to be seen by a nurse. Id. During the nurse's examination, plaintiff complained about the sexual assault pursuant to the Prison Rape Elimination Act ("PREA"), 42 U.S.C.A. § 15601 et seq. Dkt. No. 1 at 26. In response to hearing the allegation, defendant Wiggins tightened plaintiff's handcuffs, which caused him to suffer wrist pain. Id. Wiggins then escorted plaintiff to a "dry room," where he conducted an overly-aggressive strip search. Id. While plaintiff was completely naked, defendant Wiggins pulled plaintiff's hair with "force" and called him a "fucking bitch." Id.
A "dry room" is a constantly-supervised room that lacks plumbing facilities, such as a toilet. See, e.g., Paulino v. Fischer, 2012 WL 6114934, at *3 (N.D.N.Y. 2012) (McAvoy, J).
II. PROCEDURAL HISTORY
This action was initiated by the submission of a complaint signed on November 27, 2017, and filed with the court on December 1, 2017. Dkt. No. 1. Following commencement of the action, Abreu, who previously had accumulated "three strikes" for purposes of 28 U.S.C. § 1915(g), filed a motion for leave to proceed in forma pauperis ("IFP"). Dkt. No. 8. On January 22, 2018, District Judge David N. Hurd issued a decision and order in which he granted plaintiff IFP status on the basis of the "imminent danger" exception of the Prison Litigation Reform Act ("PLRA") three strikes provision. See generally Dkt. No. 11.
In the same decision and order, Judge Hurd reviewed the legal sufficiency of plaintiff's complaint, in accordance with 28 U.S.C. §§ 1915(e), 1915A and directed a response to three claims, including (1) an Eighth Amendment claim, related to plaintiff's exposure to "extreme cold" in cell B-1-22, against defendants Mayo, Maunz, Donahue, and Russo; (2) a First Amended claim, related to the "mail watch," against defendant Thomas; and (3) a First Amendment retaliation claim against defendant Wiggins, related to the use of force on November 9, 2017. See generally Dkt. No. 11.
In lieu of serving an answer, on April 12, 2018, defendants responded to plaintiff's complaint by filing a motion seeking its dismissal for failure to state a claim upon which relief may be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. No. 32. Plaintiff having failed to oppose the motion, the matter is now ripe for determination and 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. Dismissal Standard
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. v. Twombly, 550 U.S. 554, 555 (2007)). 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. 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. Exhaustion of Remedies
In their motion, defendants argue that plaintiff's claims are procedurally barred by virtue of his failure to exhaust available administrative remedies. Dkt. No. 32-1 at 5-11. While plaintiff's complaint does not address exhaustion, defendants maintain that it would have been impossible for plaintiff to satisfy his exhaustion requirement before commencing suit, given the chronology of events. Id.
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. Jones, 549 U.S. 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).
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
2. Analysis
As defendants observe, plaintiff's complaint "is silent as to plaintiff's efforts to exhaust his administrative remedies." Dkt. No. 32-1 at 4. However, because exhaustion constitutes an affirmative defense, plaintiff was not obligated to plead facts demonstrating that he has satisfied his exhaustion requirement. Jones v. Bock, 549 U.S. 199, 216 (2007); see also McNair v. Rivera, No. 12-CV-6212, 2013 WL 4779033, at *4-6 (S.D.N.Y. Sept. 6, 2013) (citing Jones, inter alia).
In their motion, defendants necessarily rely on the dates upon which the incidents are alleged to have occurred, and the time elapsing from those points to commencement of this action, arguing that it is clear from the face of the complaint that plaintiff's claims are unexhausted. Dkt. No. 32-1 at 3. Defendants observe that the relevant events are alleged to have taken place between October 31, 2017 and November 27, 2017, and that plaintiff signed his complaint, which was filed with the court on December 1, 2017, on November 27, 2017. Id. at 4. Defendants contend that in the absence of special circumstances that may shorten the timeframe, the three-step grievance procedure "may be" timely completed in a total of 103 days. Id. at 7.
As defendants observe, the maximum period for which the grievance process may be timely completed can be shortened in special circumstances, such as is the case with respect to grievances involving harassment. Dkt. No. 32-1 at 7 (citing 7 NYCRR § 701.8).
Plaintiff's claims include his allegation that he was the subject of an unconstitutional mail watch, which occurred from October 31, 2017 through, and possibly continuing past, November 27, 2017. Dkt No. 1 at 49. Assuming that plaintiff filed his grievance on the first day of the mail watch, he would have needed to fully exhaust his administrative remedies under the PLRA within twenty-seven days. With respect to plaintiff's conditions-of-confinement claim, which arose on November 6, 2017, plaintiff would have needed to fully exhaust his administrative remedies under the PLRA within twenty-one days. Dkt No. 1 at 17-18. Finally, plaintiff's retaliation claim pursuant to the First Amendment arose on November 9, 2017, he would have needed to fully exhaust his administrative remedies under the PLRA within a mere eighteen days. Dkt No. 1 at 21, 26.
Experience with inmate litigation suggests that it is not likely that plaintiff completed the grievance procedure in as few as eighteen days and as much as twenty-seven days. Defendants' argument that it was "implausible, if not impossible" for plaintiff to fully exhausted his administrative remedies thus presents an attractive argument for dismissal of his complaint. Indeed, there is some authority to suggest that a time period of less than twenty-five days between an incident and the commencement of a federal lawsuit renders plaintiff's ability to fully exhaust the grievance procedure "impossible" and provides a basis to grant a motion to dismiss pursuant to Rule 12(b)(6). See, e.g., Price v. City of New York, No. 11-CV-6170, 2012 WL 3798227, at *3 (S.D.N.Y. Aug. 30, 2012); see Cary v. City of New York, 2018 WL 1581988, *3 (S.D.N.Y. Mar. 27, 2018) (granting a motion to dismiss where it would have been impossible for the plaintiff to exhaust his administrative remedies between the July 13, 2017 incident and the August 7, 2017 complaint); cf. Cohen v. Welch, 9:16-CV-00593, 2017 WL 3311244, *5 (N.D.N.Y. Jul. 11, 2017) (concluding that the single day that elapsed between the incident and the filing of the complaint rendered it "implausible that [the p]laintiff was able to exhaust his administrative remedies before commencing this action").
At this procedural juncture, however, I am unable to recommend that his complaint be dismissed for failure to exhaust available administrative remedies. Even assuming that the number of days that elapsed firmly established that plaintiff did not file a grievance concerning the relevant events and pursue that grievance to completion before the CORC, the court would nonetheless then have to determine whether the IGP was available to him as discussed by the Supreme Court in its decision in Ross. In his complaint, plaintiff intimates that the grievance procedure may have been "unavailable" to him, in which case the exhaustion requirement would not preclude his bringing of this action. Ross, 136 S. Ct. at 1859-60. During the course of the "mail watch," which is alleged to have begun on October 31, 2017, plaintiff suggests that both his incoming and outgoing correspondence, including prison grievances, were "regularly missing." Dkt. No. 1 at 49. I am unable to discern from the face of the complaint, and without plaintiff's opposition to defendants' motion, the nature of the purportedly missing grievances from the complaint. See generally Dkt. No 1. Since it is not clear from the face of plaintiff's complaint whether circumstances rendered the IGP unavailable to the plaintiff, I am disinclined to recommend dismissal of plaintiff's complaint on this procedural basis.
At least at the summary judgment stage, a mere allegation of mail tampering, without evidentiary support, is insufficient to create genuine issue of material fact. See, e.g., Khudan v. Lee, No. 12-CV-8147, 2015 WL 5544316, at *5 (S.D.N.Y. Sept. 17, 2015); Veloz v. New York, 339 F. Supp. 2d 505, 516 (S.D.N.Y. 2004), aff'd, 178 F. App'x 39 (2d Cir. 2006).
C. Merits of Plaintiff's Conditions of Confinement Claim
In their motion, defendants also challenge the merits of plaintiff's Eighth Amendment conditions of confinement claim. In support of this portion of their motion, defendants argue that while plaintiff's conditions of confinement as described in his complaint may have been uncomfortable, as a matter of law they were not tantamount to cruel and unusual punishment and therefore do not run afoul of a the Eighth Amendment.
The Eighth Amendment prohibits punishment that is "incompatible with 'the evolving standards of decency that mark the progress of a maturing society[,]' or 'involve[s] the unnecessary and wanton infliction of pain[.]' " Estelle v. Gamble, 429 U.S. 97, 102-03 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958) and Gregg v. Georgia, 428 U.S. 153, 169-73 (1976) (citations omitted)). While the Eighth Amendment " 'does not mandate comfortable prisons,' neither does it permit inhumane ones." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)); Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013).
A claim alleging that prison conditions have violated the Eighth Amendment must satisfy both an objective and a subjective requirement. Walker, 717 F.3d at 125; Jolly v. Coughlin, 76 F.3d 468, 480 (2d Cir. 1996). To satisfy the objective element, "the plaintiff must demonstrate that the conditions of his confinement result in 'unquestioned and serious deprivations of basic human needs.' " Jolly, 76 F.3d at 480 (quoting Anderson v. Coughlin, 757 F.2d 33, 35 (2d Cir. 1985)); see also Walker, 717 F.3d at 125 ("To meet the objective element, the inmate must show that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health."). In a prison setting, basic needs include "food, clothing, medical care, and safe and sanitary living conditions." Walker, 717 F.3d at 125 (citing, inter alia, Rhodes, 452 U.S. at 347). As to the subjective requirement, "the plaintiff must demonstrate that the defendants imposed those conditions with 'deliberate indifference.' " Jolly, 76 F.3d at 480 (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)); see also Walker, 717 F.3d at 125; Waldo v. Goord, No. 97-CV-1385, 1998 WL 713809, at *2 (N.D.N.Y. Oct. 1, 1998) (Kahn, J., adopting report and recommendation by Homer, M.J.). Deliberate indifference exists if an official "knows of and disregards an excessive risk to inmate health or safety; [he] must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837; see also Walker, 717 F.3d at 125; Waldo, 1998 WL 713809, at *2.
Plaintiff's remaining Eighth Amendment allegations center upon his claim that he was subjected to extremely cold temperatures while confined in the Marcy RMHU for approximately one day. Without question, exposure to extreme temperatures in a prison setting can constitute cruel and unusual punishment as proscribed under the Eighth Amendment. See Benjamin v. Fraser, 343 F.3d 35, 52 (2d Cir. 2003) (affirming district court's conclusion that "exposure to extremes of temperature violated the detainees' constitutional rights"), overruled on other grounds by Caiozzo v. Koreman, 581 F.3d 63 (2d Cir 2009); Gatson v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001) (finding that the plaintiff's allegation that he was exposed to freezing temperatures from November 1990 through March 1991 stated a claim under the Eighth Amendment); Corselli v. Coughlin, 842 F.2d 23, 27 (2d Cir. 1988) (reversing the district court's grant of summary judgment where there was evidence that the plaintiff had been deliberately exposed to bitter cold in his cell block for three months).
The balance of plaintiff's Eighth Amendment claim, as set forth in his complaint, was dismissed upon initial review pursuant to 28 U.S.C. §§ 1915(e), 1915A. See Dkt. No. 11 at 24-29.
In the portion of the Eighth Amendment claim which survived initial review, plaintiff alleges that he was confined to Cell B-1-22 from the evening of November 6, 2017 until "lunch time" on November 7, 2017. Dkt. No. 1 at 19-21. According to plaintiff, the cell was extremely cold, and he was provided with only two mats and a smock. Id. Plaintiff further alleges that defendants Mayo and Maunz placed an object into his window that prevented it from closing. Id. On November 7, 2017, defendants Donohue and S.W. Russo noticed the condition of the cell during rounds, but failed to send anyone to the cell to correct the problem before plaintiff was transferred to an observation cell later that day. Id.
Undeniably, the Eighth Amendment is violated when a prisoner is subjected to bitter cold for prolonged periods. Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001) (involving claim by a plaintiff that he was subjected to temperatures at or below freezing for a five month period). In this instance, plaintiff's claim that he was subjected to cold air with the benefit of only two mats and a smock for a period of less than twenty-four hours does not rise to a level of constitutional significance. See Borges v. McGinnis, No. 03-CV-6375, 2007 WL 1232227, at *4-5 (W.D.N.Y. Apr. 26, 2007) (rejecting Eighth Amendment claim where defendant was allegedly kept in a cold cell for three days without a blanket); Walker v. Schriro, No. 11-CV-9299, 2013 WL 1234930, at *12-13 (S.D.N.Y. Mar. 26, 2013) (allegations that the plaintiff was forced to sleep at an intake area with constant air conditioning system blowing extreme cold air onto the plaintiff, who lacked blankets and sheets, for a period of more than two days was insufficient to support an Eighth Amendment violation).
Accordingly, I recommend that the remaining portion of plaintiff's Eighth Amendment conditions of his confinement claim be dismissed.
IV. SUMMARY AND RECOMMENDATION
Although plaintiff was under no obligation to plead facts in his complaint to demonstrate that he has complied with the PLRA's exhaustion requirement, the number of days that elapsed between the incidents and commencement of the action make it exceptionally unlikely that plaintiff complied with the exhaustion requirements. Nonetheless, it is possible that he could have completed the grievance process before commencing suit, and in any event plaintiff has alleged on the face of his complaint facts suggesting that the inmate grievance process may have been unavailable to him. Accordingly, it is hereby respectfully
RECOMMENDED that defendants' motion to dismiss (Dkt. No. 32) be GRANTED, in part, and that the remaining portion of plaintiff's Eighth Amendment conditions of confinement claim, involving allegations of extreme cold conditions in RMHU Cell B-1-22, be DISMISSED, but that defendants' motion to dismiss otherwise be DENIED, without prejudice to defendants' right to raise the issue of exhaustion on a motion for summary judgment or in a request for an evidentiary hearing pursuant to Messa v. Goord, 652 F.3d 305, 310 (2d Cir. 2011).
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 order, 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 order, 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 4, 2018
Syracuse, New York