Opinion
03 Civ. 6645 (RWS).
December 6, 2004
KOPPELL, LEAVITT, KERSON DUANE, New York, NY, Attorneys for Plaintiff, By: IRA R. GREENBERG, ESQ., Of Counsel.
HONORABLE ELIOT SPITZER, Attorney General of the State of New York, New York, NY, Attorney for Defendants, By: NEIL SHEVLIN, ESQ., Assistant Attorney General, Of Counsel.
OPINION
Defendants Ralph Bebee ("Bebee"), Edmund Barr ("Barr"), Pedro Guzman ("Guzman"), Donna Masterson ("Masterson"), Thomas Ricks ("Ricks"), Amy Tousignant ("Tousignant"), and George Watersin ("Watersin") (collectively, the "Defendants") have moved pursuant to Rules 12(b)(1), 12(b)(3), and 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint of Terry Degrafinreid ("Degrafinreid"), brought pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12132 et seq. (the "ADA"), the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq. (the "Rehabilitation Act"), and the Prisoner Litigation Reform Act, 42 U.S.C. § 1997e (the " PLRA"), as well as 42 U.S.C. §§ 1983 and 1985. For the reasons set forth below, the motion is granted in part and denied in part.
It is asserted that Guzman and Ricks have not been served. Without waiving the affirmative defense of lack of personal jurisdiction, Defendants argue that the motion to dismiss Degrafinreid's complaint should be granted in its entirety.
The Parties
At the times relevant to the allegations of the complaint, Degrafinreid was a prisoner in the custody of the New York State Department of Correctional Services ("DOCS"). (See Compl. at ¶ 1.)
At the times relevant to the allegations of the complaint, Ricks was the Superintendent of the Upstate Correctional Facility ("Upstate") of DOCS. (See Compl. at ¶ 2.) Masterson was the ADA Coordinator of DOCS. (See Compl. at ¶ 3.) Barr and Bebee were New York State Correction Officers in the employ of DOCS and assigned to Upstate. (See Compl. at ¶ 4.) Watersin and Guzman were nurses employed by DOCS assigned to Upstate. (See Compl. at ¶ 5.) Tousignant was a nurse administrator for DOCS assigned to Upstate. (See Compl. at ¶ 6.)
Prior Proceedings
This action was commenced on September 3, 2003 with the filing of a complaint (the "Complaint"), alleging that on September 10, 2002, Degrafinreid was "viciously attacked" by certain Correction Officers who destroyed his hearing aids. (Compl. at ¶ 12.) The case was referred to this Court as possibly related to Clarkson v. Coughlin, No. 91 Civ. 1792 (RWS), see generally Clarkson v. Coughlin, 898 F. Supp. 1019 (S.D.N.Y. 1995), and was accepted on September 19, 2003.
The Complaint contains nine claims, each of which is asserted against all Defendants except as otherwise noted: (1) violations of the ADA and the Rehabilitation Act (see Compl. at ¶¶ 22-25); (2) violations of the PLRA (see Compl. at ¶¶ 26-28); (3) conspiracy to commit cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution (see Compl. at ¶¶ 29-31); (4) conspiracy to violate Degrafinreid's civil rights in violation of 42 U.S.C. §§ 1983 and 1985 (see Compl. at ¶¶ 32-34); (5) assault (see Compl. at ¶¶ 35-37); (6) intentional infliction of emotional distress (see Compl. at ¶¶ 38-39); (7) respondeat superior liability of Ricks for the intentional torts of the other Defendants (see Compl. at ¶¶ 40-42); (8) negligence (see Compl. at ¶¶ 43-44); and (9) denial of medical treatment. (See Compl. at ¶¶ 45-47). Degrafinreid seeks compensatory and exemplary damages with respect to each of the nine claims (see Compl. at ¶¶ 25, 28, 31, 34, 37, 39, 42, 44, 47), prospective relief and preliminary and permanent injunctive relief under the PLRA and the ADA (see Compl. at ¶ 27; see also id. at 9-10), and an order finding Defendants in contempt of the Consent Judgment and Order of June 10, 1996 entered in Clarkson v. Coughlin, No. 91 Civ. 1792 (RWS) (the "Clarkson Consent Judgment"). (See Compl. at 9.)
By order to show cause dated September 9, 2003, Degrafinreid moved for a preliminary injunction pursuant to Rule 65(a), Fed.R.Civ.P., seeking, inter alia, the provision of operable hearing aids and adequate batteries. By a consent order dated November 3, 2003 (the "Consent Order"), Degrafinreid's motion was granted "to the extent that the defendants are directed to provide . . . Degrafinreid with operable hearing aids and batteries forthwith." (Consent Order at 2.) Degrafinreid subsequently moved for an order awarding attorney's fees pursuant to 42 U.S.C. § 1988(b), which motion was denied without prejudice, leave being granted to renew the motion upon a showing that the appropriate standard has been met. See Degrafinreid v. Ricks, No. 03 Civ. 6645 (RWS), 2004 WL 944517, at *3 (S.D.N.Y. May 4, 2004) (observing that "the Consent Order, on its face, embodies neither the resolution of one of the legal claims made in Degrafinreid's complaint, nor the disposition of Degrafinreid's motion for a preliminary injunction on the merits").
Defendants filed the instant motion on March 15, 2004. Oral arguments were heard on April 28, 2004, at which time the motion was deemed fully submitted.
The Facts
The following factual background is drawn from the allegations of the Complaint, and does not constitute findings of fact by the Court.
Because of a previous beating in the New York State prison system, Degrafinreid is nearly totally deaf and depends upon two hearing aids to be able to hear properly. (See Compl. at ¶ 11.)
On or about September 9, 2002, Degrafinreid wrote to Masterson in Albany, New York. (See Compl. at ¶ 14.)
On or about September 10, 2002, at approximately 7:15 p.m., Barr and Bebee attacked Degrafinreid and destroyed his hearing aids. (See Compl. at ¶¶ 12, 14.)
On or about September 11, 2002, Degrafinreid filed a formal complaint with DOCS concerning the incident on September 10. (See Compl. at ¶ 13.) The grievance was denied by Ricks in a signed writing dated December 13, 2002. (See id.)
On or about September 25, 2002, Masterson responded to Degrafinreid. (See Compl. at ¶ 14.) On or about September 26, 2002, Degrafinreid again wrote to Masterson detailing the conduct of Barr and Bebee in destroying his hearing aids on or about September 10. (See Compl. at ¶ 15.)
On or about November 7, 2002, Masterson again wrote to Degrafinreid, "again refusing to acknowledge the unlawful conduct" of Barr and Bebee in destroying Degrafinreid's hearing aids. (Compl. at ¶ 16.)
On November 17, 2002, Degrafinreid wrote to Eliot Spitzer, Attorney General of the State of New York ("Spitzer"). He received no response. (See Compl. at ¶ 18.)
On or about December 12, 2002, Degrafinreid again wrote to Masterson detailing the refusal of DOCS to adequately deal with Degrafinreid's hearing problems. There was no response. (See Compl. at ¶ 17.)
As of the date of the filing of the Complaint, Degrafinreid had not been given replacement hearing aids by any of the officials of DOCS. (See Compl. at ¶ 19.)
Degrafinreid has alleged that as a result of the conduct set forth in the Complaint, Defendants are in violation of theClarkson Consent Judgment. (See Compl. at ¶ 20.) Degrafinreid also alleges that he has exhausted all of his administrative remedies. (See Compl. at ¶ 21.)
Discussion
Defendants have moved pursuant to Rules 12(b)(1), 12(b)(3), and 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the Complaint.
I. Defendants' Rule 12(b)(1) Motion Is Granted in Part and Denied in Part
"Normally, motions to dismiss for lack of [subject matter] jurisdiction pursuant to Rule 12(b)(1) must be decided before motions pursuant to other Federal Rules of Civil Procedure are considered." Liberty Ridge LLC v. Real Tech Sys. Corp., 173 F. Supp. 2d 129, 134 (S.D.N.Y. 2001); see also Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir.) ("Where . . . the defendant moves for dismissal under Rule 12(b)(1), Fed.R.Civ.P., as well as on other grounds, `the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined.'") (citation omitted).
Under Fed.R.Civ.P. 12(b)(1), a facially sufficient complaint may be dismissed for lack of subject matter jurisdiction if the asserted basis for jurisdiction is not sufficient. See TM Patents, L.P. v. Int'l Bus. Machs. Corp., 121 F. Supp. 2d 349, 367-68 (S.D.N.Y. 2000); Peterson v. Continental Airlines, Inc., 970 F. Supp. 246, 249 (S.D.N.Y. 1997). Once subject matter jurisdiction is challenged, the burden of establishing jurisdiction rests with the party asserting that it exists. See Thomson v. Gaskill, 315 U.S. 442, 446 (1942); Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996). The party asserting subject matter jurisdiction has the burden of proving, by a preponderance of the evidence, that the court has subject matter jurisdiction. See Malik, 82 F.3d at 562; Gallo v. United States, Dep't of Treasury, Internal Revenue Serv., 950 F. Supp. 1246, 1248 (S.D.N.Y. 1997) (citing Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994)).
On a Rule 12(b)(1) motion, the court may resolve disputed jurisdictional factual issues by reference to evidence outside the pleadings. See J.S. ex rel. N.S. v. Attica Cent. Schools, 386 F.3d 107, 110 (2d Cir. 2004); Kamen v. Am. Tel. Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986). The court may decide the matter on the basis of affidavits or other evidence, and "no presumptive truthfulness attaches to the complaint's jurisdictional allegations." Guadagno v. Wallack Ader Levithan Assocs., 932 F. Supp. 94, 95 (S.D.N.Y. 1996); accord Integrated Utils. Inc. v. United States, No. 96 Civ. 8983 (SAS), 1997 WL 529007, at *3 (S.D.N.Y. Aug. 26, 1997) (noting that "`argumentative inferences favorable to the party asserting jurisdiction should not be drawn'") (quoting Atl. Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992)).
A. Certain of Degrafinreid's Claims Are Barred Under the Eleventh Amendment
Defendants argue that Degrafinreid's claims for damages are barred by the Eleventh Amendment to the United States Constitution, which precludes a citizen of a state from bringing claims against that state or one of its agencies in federal court, absent the state's consent to such a suit or Congress's abrogation of the state's immunity. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 53 (1996); Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Huang v. Johnson, 251 F.3d 65, 69-70 (2d Cir. 2001). Where a suit against a state or one of its agencies is premised on one of the two identified exceptions, i.e., the state's consent to suit or Congress's intent to abrogate the state's immunity from suit, the grounds for the exception must be clear and unequivocal. See Seminole Tribe of Florida, 517 U.S. at 53; Green v. Mansour, 474 U.S. 64, 68 (1985). The immunity provided by the Eleventh Amendment relates to actions seeking damages but does not bar claims seeking declaratory or prospective injunctive relief. See Davis v. New York, 316 F.3d 93, 101-02 (2d Cir. 2002); Gowins v. Greiner, No. 01 Civ. 6933 (GEL), 2002 WL 1770772, at *3 (S.D.N.Y. July 31, 2002) (collecting cases).
The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. Although, by its express terms, the Eleventh Amendment would appear not to apply under the circumstances presented here, since Degrafinreid is not a citizen of another state, "it is by now clear that the Supreme Court's Eleventh Amendment jurisprudence bears no relationship to the provision's text." Gowins v. Greiner, No. 01 Civ. 6933 (GEL), 2002 WL 1770772, at *3 (S.D.N.Y. July 31, 2002).
The immunity provided by the Eleventh Amendment extends to actions seeking damages against state officials sued in their official capacities if the state is the real party in interest.See Davis, 316 F.3d at 101; Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993); Farid v. Smith, 850 F.2d 917, 921 (2d Cir. 1988). Thus, "[e]mployees of DOCS and its facilities, when sued in their official capacities, have been held to be subject to the state's Eleventh Amendment immunity."Johnson v. Goord, No. 01 Civ. 9587 (PKC), 2004 WL 2199500, at *4 (S.D.N.Y. Sept. 29, 2004) (citing, inter alia, Davis, 316 F.3d at 101). This immunity extends not only to federal claims but also to official-capacity claims arising under state law. See Allen v. Cuomo, 100 F.3d 253, 260 (2d Cir. 1996) ("The Eleventh Amendment bars federal suits against state officials on the basis of state law. . . . This applies to state law claims brought into federal court under pendent jurisdiction as well.") (citation omitted); compare Bad Frog Brewery, Inc. v. New York State Liquor Auth., 134 F.3d 87, 102 (2d Cir. 1998) ("The jurisdictional limitation recognized in Pennhurst does not apply to an individual capacity claim seeking damages against a state official, even if the claim is based on state law.") (citing Pennhurst State Sch. Hosp., 465 U.S. at 111 n. 21).
To determine whether a state official is being sued in his or her official rather than individual capacity, the court must look behind the designation and determine whether "the State is the real substantial party in interest." Ford Motor Co. v. Dep't of Treasury, 323 U.S. 459, 464 (1945), overruled in part on other grounds by Lapides v. Bd. of Regents of the Univ. Sys. of Georgia, 535 U.S. 613 (2002). "In determining who is the real party in interest, the `general rule' is that relief sought nominally against an officer is in fact against the sovereign if `the effect of the judgment would be to restrain the Government from acting, or to compel it to act.'" Connecticut v. Cahill, 217 F.3d 93, 106 (2d Cir. 2000) (quoting Pennhurst State Sch. Hosp., 465 U.S. at 101 n. 11). "Personal-capacity suits, on the other hand, seek to impose individual liability upon a government officer for actions taken under color of state law." Hafer v. Melo, 502 U.S. 21, 25 (1991). If the action is an official capacity suit for damages against the official, under the Eleventh Amendment the district court lacks subject matter jurisdiction to entertain the suit.See, e.g., Johnson, 2004 WL 2199500, at *4. If state officials are sued in their personal or individual capacities, however, the Eleventh Amendment offers no immunity. See Hafer, 502 U.S. at 27-31; Farid, 850 F.2d at 921; Gowins, 2002 WL 1770772, at *3.
Defendants argue that Degrafinreid's claims are asserted against them in their official capacities and that the state itself is the real party in interest. Insofar as Degrafinreid is seeking damages for the actions and omissions allegedly taken or permitted by personnel and policies of DOCS, Defendants assert that his claims are barred by the Eleventh Amendment and the jurisprudence promulgated thereunder. Degrafinreid has not responded to Defendants' Rule 12(b)(1) argument in his opposition papers.
Sections 1983 and 1985 of Title 42 were not intended to abrogate the states' immunity. See, e.g., Quern v. Jordan, 440 U.S. 332, 343-44 (1979) (Section 1983); Fincher v. State of Florida Dep't of Labor Employment Sec., 798 F.2d 1371, 1371 (11th Cir. 1986) (Section 1985); True v. New York State Dep't of Corr. Servs., 613 F. Supp. 27, 31 (W.D.N.Y. 1984) (Section 1985). Since no waiver of immunity has otherwise been established, to the extent that Degrafinreid is seeking damages from Defendants in their official capacities under these statutory provisions, his claims are dismissed, as is his Eighth Amendment claim. See Davis, 316 F.3d at 101-02. Since Degrafinreid asserts that Defendants "are individually liable" with respect to his Section 1983 and 1985 claims (Compl. at ¶ 33), however, these claims are not dismissed in their entirety.
Degrafinreid's PLRA and state law claims are dismissed insofar as Degrafinreid is seeking damages against Defendants in their official capacities. See, e.g., Miller v. New York State Dep't of Corrs., 217 F. Supp. 2d 391, 393 (S.D.N.Y. 2002);Ruffin v. Deperio, 97 F. Supp. 2d 346, 356-57 (W.D.N.Y. 2000). As Degrafinreid is assertedly suing Defendants in their individual capacities with respect to all of the state law claims with the exception of the claim for denial of medical treatment (see Compl. at ¶¶ 36, 39, 42, 44), those claims are not dismissed to the extent that Defendants are named in their individual capacities.
Degrafinreid's remaining claim arises under Title II of the ADA and Section 504 of the Rehabilitation Act. Insofar as Degrafinreid is suing Defendants in their individual capacities, the Court of Appeals for this circuit has held that "neither Title II of the ADA nor § 504 of the Rehabilitation Act provides for individual capacity suits against state officials." Garcia v. S.U.N.Y. Health Sciences Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (collecting cases). The ADA and Rehabilitation Act claim against Defendants, to the extent brought against Defendants in their individual capacities, is therefore dismissed.
The Second Circuit has further held that "a private suit for money damages under Title II of the ADA may only be maintained against a state if the plaintiff can establish that the Title II violation was motivated by either discriminatory animus or ill will due to disability." Id. at 112 (affirming dismissal of a complaint asserting claims under Title II of the ADA and Section 504 of the Rehabilitation Act against a state university and individual defendant officers of the state university in accordance with Eleventh Amendment principles).
Degrafinreid has alleged that Defendants failed to afford him various reasonable accommodations, which actions or omissions "constitute discrimination on the basis of [Degrafinreid's] disability. . . ." (Compl. at ¶ 23.) As the United States Supreme Court's limited holding in Tennessee v. Lane, 124 S. Ct. 1978 (2004), does not appear to have impacted the standard set forth in Garcia, and Degrafinreid has failed to specifically allege that Defendants' conduct was driven by "discriminatory animus or ill will," his ADA claim, to the extent brought against Defendants in their official capacity and seeking monetary damages, is dismissed. See, e.g., Zahran ex rel. Zahran v. New York Dep't of Educ., 306 F. Supp. 2d 204, 210 (N.D.N.Y. 2004) (dismissing a Title II ADA claim where the plaintiffs "merely allege[d] that, by `failing to reasonably accommodate Ibrahim's disabilities, . . . [defendants] have discriminated against [him] on the basis of his disability'") (alterations in original) (citing Harris v. New York State Dep't of Health, 202 F. Supp. 2d 143, 174-75 (S.D.N.Y. 2002) (dismissing a Title II ADA claim for failure to plead discriminatory animus or ill will)). Because no waiver of immunity has been advanced by Degrafinreid with regard to the Rehabilitation Act claim, that claim, to the extent advanced against Defendants in their official capacities, is likewise dismissed. See Garcia, 280 F.3d at 114. Degrafinreid's ADA claim, to the extent asserted against Defendants in their official capacities and seeking injunctive relief (see Compl. at 9), withstands Defendants' Eleventh Amendment challenge.
In Tennessee v. Lane, 124 S. Ct. 1978 (2004), the Supreme Court concluded that Title II of the ADA abrogated the states' immunity as to the fundamental right of access to the courts, but declined to address whether the statutory abrogation of sovereign immunity by Title II extended to other fundamental rights or to non-fundamental rights. See Lane, 124 S. Ct. at 1992-94 n. 20.
To summarize, Degrafinreid's claims under 42 U.S.C. §§ 1983 and 1985, the Eighth Amendment, the PLRA, and the ADA are dismissed insofar as they seek monetary damages and are brought against Defendants in their official capacities, as are Degrafinreid's state law tort claims. To the extent that Degrafinreid seeks to assert an ADA claim against Defendants in their individual capacities, the claim is likewise dismissed. The Rehabilitation Act claim and the state law claim for denial of medical treatment are dismissed in their entirety.
II. Defendants' Rule 12(b)(3) Motion Is Denied
In considering a Rule 12(b)(3) motion to dismiss for improper venue, a court must accept the facts alleged in the complaint as true and draw all reasonable inferences and resolve all factual conflicts in the plaintiff's favor. See Central National-Gottesman, Inc. v. M.V. "GERTRUDE OLDENDORF", 204 F. Supp. 2d 675, 677 (S.D.N.Y. 2002); United States Envtl. Prot. Agency ex rel. McKeown v. Port Auth., 162 F. Supp. 2d 173, 183 (S.D.N.Y.), aff'd sub nom. McKeown v. Delaware Bridge Auth., 23 Fed. Appx. 81 (2d Cir. 2001), cert. denied, 535 U.S. 1079 (2002). In deciding such a motion, the "`court may examine facts outside the complaint to determine whether venue is proper.'"Concesionaria DHM, S.A. v. Int'l Fin. Corp., 307 F. Supp. 2d 553, 555 (S.D.N.Y. 2004) (quoting McKeown, 162 F. Supp. 2d at 183 (quoting 5A Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure: Civil 2d § 1352 (1990 Supp. 1999))). "The plaintiff bears the burden of showing that venue is proper once an objection is raised, and it must show that venue is proper for each claim against each defendant." Concesionaria DHM, 307 F. Supp. 2d at 558 (citing PI, Inc. v. Quality Prod., Inc., 907 F. Supp. 752, 757 (S.D.N.Y. 1995)); Central National-Gottesman, 204 F. Supp. 2d at 677; French Transit, Ltd. v. Modern Coupon Sys., Inc., 858 F. Supp. 22, 25 (S.D.N.Y. 1994).
Defendants contend that this action is improperly venued, as Defendants reside outside of this district and the events alleged by Degrafinreid occurred at Upstate, which is located outside of this district as well. Accordingly, Defendants argue that this action should either be dismissed or transferred to a district where venue properly lies. In opposition, Degrafinreid argues that venue is proper, in that, pursuant to the Clarkson Consent Judgment, DOCS and its officials subjected themselves to this Court's continued supervision concerning their compliance with the ADA with reference to deaf prisoners in their care, custody and control. Degrafinreid is alleged to be such a prisoner. (See Compl. at ¶ 9.)
Although, as Defendants correctly note, the Clarkson Consent Judgment contains no provision requiring that venue be had in this district as to future actions brought by an inmate who alleges a disability, Degrafinreid is seeking relief in the form of, inter alia, an order finding that Defendants are in contempt of the Clarkson Consent Judgment. As there is no dispute as to the role of this Court in enforcing compliance with the Clarkson Consent Judgment, including by hearing motions for contempt, or the Court's continued jurisdiction to do so, and the grounds upon which Degrafinreid seeks relief under the Clarkson Consent Judgment are interrelated with his other claims for relief, venue in this district is proper. See, e.g., United States v. Twentieth Century Fox Film Corp., 882 F.2d 656, 665-66 (2d Cir. 1989) (concluding that criminal contempt proceedings related to violations of a consent decree had proper venue in the district in which the consent decree was entered, notwithstanding the fact that the underlying violations occurred elsewhere); Emrick v. Bethlehem Steel Corp., 624 F.2d 450, 453 (3d Cir. 1980) (explaining that "[i]t is customary for complaints about the failure of parties to comply with consent decrees to be brought before the court supervising the decrees" and concluding that an employment discrimination action, insofar as it was premised on claimed violations of certain consent decrees, should have been brought in the judicial district supervising the decrees, but ruling that, under the particular facts of the case, it was error for the district court to dismiss the remaining statutory claims); Jermosen v. Coughlin, No. 87 Civ. 7803 (RLC), 1992 WL 116319, at *1 (S.D.N.Y. May 19, 1992) (denying the defendant's motion brought pursuant to 28 U.S.C. § 1391 to dismiss or transfer the case due to improper venue where the plaintiff was seeking to enforce a consent decree issued in the Southern District of New York as well as asserting claims under Section 1983 closely related to the contempt claim).
III. Defendants' Rule 12(b)(6) Motion Is Granted in Part and Denied in Part
In considering a motion to dismiss pursuant to Rule 12(b)(6), the court should construe the complaint liberally, "accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor." Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (citingGregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001)). Documents incorporated by reference in or integral to a complaint may properly be considered on a motion to dismiss. See id. at 152-53; see also Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991).
In ruling on a motion brought pursuant to Rule 12(b)(6), "[t]he 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, 235-36, (1974)). Accordingly, dismissal is only appropriate when "it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him or her to relief." Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000).
Defendants argue that Degrafinreid has failed to exhaust his administrative remedies as required by the PLRA, the ADA and the Rehabilitation Act. Defendants further argue that Degrafinreid has failed to state a claim under the PLRA, the Eighth Amendment, or 42 U.S.C. § 1985, and that Degrafinreid's Section 1983 and respondeat superior claims against Superintendent Ricks should be dismissed. Finally, Defendants contend that they are entitled to qualified immunity as to certain of Degrafinreid's federal claims and that supplemental jurisdiction over Degrafinreid's state claims should not be exercised in the absence of a viable federal claim.
A. Degrafinreid Has Partially Exhausted Available Administrative Remedies
As Degrafinreid is an inmate in the custody of DOCS, this action is subject to the PLRA, and, specifically, to the requirement that administrative remedies be exhausted before an action may be brought on the underlying claims. The PLRA states that,
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.42 U.S.C. § 1997e(a). This 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." Porter v. Nussle, 534 U.S. 516, 532 (2002). The provision is applicable even to those suits seeking relief, such as money damages, not available through prison administrative proceedings. See Booth v. Churner, 532 U.S. 731, 741 (2001). Thus, inmates' claims that fit within "the category of `inmate suits about prison life' . . . must be preceded by the exhaustion of state administrative remedies available. . . ." Lawrence v. Goord, 304 F.3d 198, 200 (2d Cir. 2002).
Defendants concede that Degrafinreid filed a grievance alleging that Barr and Bebee destroyed his property, including his left hearing aid, legal research and headphones, and further alleging that Barr and Bebee frisked him too roughly. According to Defendants, Degrafinreid's grievance was denied, as was his appeal to the Superintendent. Although it appears that Degrafinreid prepared an appeal to the Central Office Review Committee ("CORC"), Defendants report that due to clerical oversight the appeal was never forwarded to CORC.
Defendants have indicated that, following discovery of the clerical oversight in or about March 2004, Degrafinreid's appeal was being forwarded to CORC for appellate review.
As Upstate never forwarded Degrafinreid's appeal to CORC, Defendants do not contend that the claims stated in his grievance were not exhausted. However, they assert that his grievance contains no allegations to the effect that he has not been provided with reasonable accommodations under the ADA and the Rehabilitation Act, that Defendants repeatedly violated the PLRA, that Defendants conspired against him, that Defendants used excessive force against him, or that Defendants intentionally inflicted emotional distress upon him. Defendants also argue that the presence of ungrieved claims in the Complaint mandates dismissal of Degrafinreid's action in its entirety. Finally, Defendants argue that Degrafinreid has failed to exhaust the administrative remedies dictated by the ADA and the Rehabilitation Act.
In opposition, Degrafinreid argues that Defendants allegedly violated the Clarkson Consent Judgment and, therefore, should be estopped from arguing that he failed to exhaust his administrative remedies. Degrafinreid also argues that he was attacked one day after he made "his initial ADA complaint" to Masterson on September 9, 2002 (Pl. Opp. Mem. at 3) and that subsequent attempts to appeal and appeals were ignored. Moreover, according to Degrafinreid, to require him to complete the administrative appeal procedure while he had no hearing aids would have been a denial of due process under the Fourteenth Amendment to the United States Constitution as well as cruel and unusual punishment under the Eighth Amendment. Degrafinreid further argues that he has "presented and complained of the facts to the proper authorities" and asserts that the requirement that he "actually complain that the ADA was violated while DOCS's own ADA officer is unresponsive places [Degrafinreid] in a continual cycle of new complaints and denials." (Id. at 4.) Finally, Degrafinreid contends that neither the ADA nor the Rehabilitation Act requires a complainant to exhaust the administrative remedies authorized by those statutes prior to filing suit.
Following briefing and arguments on Defendants' motion, the Court of Appeals for the Second Circuit clarified certain aspects of the nature and scope of the administrative exhaustion requirement set forth in the PLRA in a suite of five decisions issued in August 2004. As the Court of Appeals explains, although "our circuit has recognized that . . . the PLRA's exhaustion requirement is `mandatory,' certain caveats apply." Giano v. Goord, 380 F.3d 670, 677 (2d Cir. 2004) (quoting Porter, 534 U.S. at 524) (internal citation omitted).
In the first of the five decisions rendered, Ortiz v. McBride, 380 F.3d 649 (2d Cir. 2004), petition for cert. filed, — U.S.L.W. — (U.S. Nov. 16, 2004) (No. 04-668), the Court of Appeals held that the presence of unexhausted claims in an inmate's § 1983 complaint does not compel dismissal of the action in its entirety. See Ortiz, 380 F.3d at 662 (noting that, "in the ordinary case, once the district court dismisses the unexhausted claims, it will proceed directly to decide the exhausted claims without waiting for the plaintiff to attempt to exhaust available administrative remedies with respect to the dismissed claims"). In the second such decision, Abney v. McGinnis, 380 F.3d 663 (2d Cir. 2004), the Court of Appeals noted that "the PLRA does not require the exhaustion of all administrative remedies, but only those that are `available' to the inmate," Abney, 380 F.3d at 667, and concluded that, under certain circumstances, a defendant's behavior may render administrative remedies unavailable to a prisoner. Such circumstances include the repeated failure to implement multiple administrative rulings in a prisoner's favor. See id. at 669. As the Court of Appeals explained, "[w]here, as here, prison regulations do not provide a viable mechanism for appealing implementation failures, prisoners in [the plaintiff's] situation have fully exhausted their available remedies." Id. Accordingly, "[a] prisoner who has not received promised relief is not required to file a new grievance where doing so may result in a never-ending cycle of exhaustion." Id.
In Giano v. Goord, 380 F.3d 670 (2d Cir. 2004), the third decision of the quintet, the Court of Appeals held that
[T]here are certain "special circumstances" in which, though administrative remedies may have been available and though the government may not have been estopped from asserting the affirmative defense of non-exhaustion, the prisoner's failure to comply with administrative procedural requirements may nevertheless be justified.Giano, 380 F.3d at 676. Specifically, the Giano Court held that failure to exhaust administrative remedies is justified where the inmate reasonably believed that "DOCS regulations foreclosed such recourse." Id. at 678.
In Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004), the Court of Appeals held that: (1) the standard for assessing the availability of a grievance procedures is whether "`a similarly situated individual of ordinary firmness'" would have deemed the procedure available, Hemphill, 380 F.3d at 688 (quoting Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003)); (2) a defendant's actions inhibiting an inmate's exhaustion of remedies may estop assertion of the failure to exhaust as an affirmative defense,see id. at 686; and (3) a reasonable fear of retaliation is a "special circumstance" justifying the failure to exhaust available administrative remedies. Id. at 690.
Finally, in Johnson v. Testman, 380 F.3d 691 (2d Cir. 2004), the Court of Appeals held that the defense of failure to exhaust administrative remedies under the PLRA is waivable, see Johnson, 380 F.3d at 695, and separately concluded that, "[i]n order to exhaust, . . . inmates must provide enough information about the conduct of which they complain to allow prison officials to take appropriate responsive measures." Id. at 697 (remanding the matter to the district court to determine in the first instance whether complaints concerning a correction officer's conduct referenced during the plaintiff's disciplinary appeals afforded prison officials time and opportunity to take responsive measures and whether the plaintiff was justified in raising the complaint in the context of the disciplinary proceeding).
The Court of Appeals' decisions just described bear upon several of the issues raised in the instant motion, including the process by which administrative exhaustion under the PLRA is analyzed. As set forth in Hemphill, these decisions require a determination as to (1) whether administrative remedies were "available" to Degrafinreid; (2) whether Defendants forfeited the affirmative defense of non-exhaustion or are estopped from asserting Degrafinreid's failure to exhaust as a defense; and, if administrative remedies were available, Defendants have not forfeited the non-exhaustion defense and are not estopped from asserting it, and Degrafinreid nonetheless failed to exhaust available remedies, (3) whether "`special circumstances' have been plausibly alleged to justify `the prisoner's failure to comply with administrative procedural requirements.'" Hemphill, 380 F.3d at 686 (quoting Giano, 380 F.3d at 676); see also Veloz v. New York, 339 F. Supp. 2d 505, 513 (S.D.N.Y. 2004) (summarizing the analytical steps elaborated in the Court of Appeals' recent jurisprudence).
As an initial matter, the Clarkson Consent Judgment does not excuse Degrafinreid from the PLRA's exhaustion requirement or, as Degrafinreid claims, estop Defendants from arguing that he has failed to exhaust his claims by placing DOCS on perpetual notice of all issues pertaining to deaf or hard of hearing inmates. To the contrary, the Clarkson Consent Judgment specifically anticipates that deaf and hard of hearing inmates may grieve their claims concerning requests for reasonable accommodations, and provides for DOCS to establish a simplified grievance process as a result. Thus, under the Clarkson Consent Judgment,
DOCS shall, in consultation with plaintiffs' counsel, modify the existing inmate grievance procedure to make it accessible to deaf and hard of hearing inmates. Deaf and hard of hearing inmates shall be advised of their right to grieve any decision with respect to a request for a reasonable accommodation, and shall be advised in simple, clear language of the method of filing a grievance. Inmates shall be provided with access to sign language interpreters, and other auxiliary aids, services and assistive devices as described in ¶ 20 to facilitate the preparation of a grievance. . . .
(Clarkson Consent Judgment, at ¶ 9.) Degrafinreid has pointed to nothing in the Clarkson Consent Judgment that abrogates an inmate's obligation to fully exhaust his or her administrative remedies regarding requests for reasonable accommodations or any other matter.
Turning to the analysis outlined in Hemphill, there are no allegations in the Complaint that Degrafinreid was prevented from filing a grievance by any Defendant or other person, nor that the DOCS grievance procedure was otherwise unavailable to him. Indeed, Degrafinreid successfully filed an Inmate Grievance Report, dated September 10, 2002 (the "Grievance"), with regard to certain alleged events on that same date, and subsequently pursued appeals of the denial of the Grievance. In view of Degrafinreid's participation in the DOCS grievance process and in the absence of any allegation that he was hampered in his participation due to his absent hearing aids, his assertion that the requirement that he completely exhaust his administrative remedies when he was without his hearing aids "would have been a denial of due process under the 14th Amendment, and the [sic] cruel and unusual punishment under the 8th Amendment of the U.S. Constitution" is without any basis. (Pl. Opp. Mem. at 3.)
The structure of New York State's Inmate Grievance Procedure is set forth in some detail in Veloz v. New York, 339 F. Supp. 2d 505, 513-14 (S.D.N.Y. 2004).
Degrafinreid's Grievance is incorporated by reference in the Complaint and purportedly attached thereto. (See Compl. at ¶ 13.) Although not appended to the Complaint itself, the Grievance is attached to the Declaration of Valerie Singleton, dated October 21, 2003, previously submitted in this matter. (See Declaration of Valerie Singleton, dated Oct. 21, 2003 Exh. D.)
Degrafinreid does not allege, nor does it appear, that Defendants have forfeited the affirmative defense of non-exhaustion. Although Degrafinreid alleges that certain of his letters went unanswered and asserts generally that his requests for hearing aids were continually ignored or denied, there is nothing in the Complaint to demonstrate that he made any such requests apart from the single grievance filed or the letters sent to Masterson and Spitzer. Even taking as true Degrafinreid's allegation that he never received responses to certain of his letters, the absence of a response does not demonstrate that Defendants' conduct inhibited Degrafinreid's ability to exhaust his administrative remedies through the DOCS grievance procedure. Further, although he argues in opposition to Defendants' motion that the alleged attack on September 10, 2004 occurred one day after he had written a letter to Masterson complaining of discrimination based on his disability, it is neither alleged nor established that Degrafinreid was dissuaded from filing further grievances for fear of retaliation.
As the DOCS grievance procedure was available to Degrafinreid and Defendants are not estopped from asserting his failure to exhaust his claims, the next step is to determine whether and to what extent Degrafinreid exhausted his administrative remedies. Defendants do not dispute that the Grievance sets forth allegations that Barr and Bebee destroyed his property, including his left hearing aid, legal research and headphones, and that, in frisking him, they subjected him to unnecessary roughness. Defendants correctly note, however, that the Grievance contains no reference to any conspiracy among Defendants, nor any factual allegations from which it could be inferred that Defendants are alleged to "regularly and continually violate the rights of [Degrafinreid] and other state prisoners to be free of cruel and unusual punishment" (Compl. at ¶ 30 ( Eighth Amendment claim)) or that Defendants "so wantonly, recklessly, negligently, and improperly administered [Upstate], and/or all of the other state prison facilities of DOCS, so as to require" the imposition of injunctive relief so that Degrafinreid "and the rest of the state's prisoners are not regularly beaten, maimed, starved, injured, scarred and inadequately medically treated." (Compl. at ¶ 27 (PLRA claim)). At most, the Grievance may be read to suggest that Degrafinreid allegedly has been subjected to mocking and taunting by Barr and Bebee with regard to his disability for an extended period of time, which allegation has no evident relationship to the PLRA and Eighth Amendment claims set forth in the Complaint.
Degrafinreid asserted in his Grievance that he was frisked "a little too roughly" on September 10, 2002. (Grievance, annexed to the Declaration of Valerie Singleton, dated Oct. 21, 2003 ("Singleton Decl."), as Exhibit D.) In his subsequent appeal, Degrafinreid explained that he had grieved that Barr and Bebee "applied unnecessary roughness while frisking" him. (Declaration of Neil Shevlin, dated Mar. 15, 2004 ("Shevlin Decl."), Exh. A.) Nowhere in the Grievance or its appeal, however, does Degrafinreid assert that he was attacked or beaten, the conduct of which he currently complains in the Complaint and which forms the basis for his claims of, inter alia, assault and intentional infliction of emotional distress. As the Court of Appeals for our circuit has explained,
Degrafinreid's appeal is incorporated by reference in the Complaint. (See Compl. at ¶ 13.)
The PLRA's exhaustion requirement is designed to "afford corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case." Porter, 534 U.S. at 524-25, 122 S. Ct. 983. As such, it is not dissimilar to the rules of notice pleading, which prescribe that a complaint "must contain allegations sufficient to alert the defendants to the nature of the claim and to allow them to defend against it." Freedom Holdings, Inc. v. Spitzer, 357 F.3d 205, 234 (2d Cir. 2004). Thus, the Seventh Circuit has held that, if prison regulations do not prescribe any particular content for inmate grievances, "a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought. As in a notice pleading system, the grievant need not lay out the facts, articulate legal theories, or demand particular relief. All the grievance need do is object intelligibly to some asserted shortcoming." Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002).Johnson, 380 F.3d at 697. "In order to exhaust, therefore, inmates must provide enough information about the conduct of which they complain to allow prison officials to take appropriate responsive measures." Id. Here, Degrafinreid made no mention of any beating or attack, nor may it reasonably be inferred that he was beaten based on his assertion that he was frisked too roughly. Accordingly, his Grievance did not give notice of the alleged conduct underlying his assault and emotional distress claims, among other claims in the Complaint.
Further, while the Grievance contains repeated references to Degrafinreid's missing hearing aids and batteries and specifically mentions Degrafinreid's desire to be moved to another facility that can better accommodate him and his disability pursuant to Title II of the ADA, no mention is made of any failure to provide a "qualified sign language interpreter during sick call, orientation, grievance hearings, confidential communications with facility staff, and vocational training and GED programs," "an effective visual fire alarm system," "use of television sets equipped to permit closed-captioned viewing comparable to the use enjoyed by hearing inmates," or "reasonable access to TDD" (Compl. at ¶ 23), nor may any such failure be inferred from the allegations contained in the Grievance. Although Degrafinreid mentioned several of these factors in his letter of September 9, 2002 to Masterson, noting that he had requested a qualified sign language interpreter, sound amplification systems, visual smoke detectors, and other accommodations, and Degrafinreid made further, related allegations in his subsequent letters, such letters do not generally satisfy the PLRA's grievance requirement, see, e.g., Muhammad v. Pico, No. 02 Civ. 1052 (AJP), 2003 WL 21792158, at *8 (S.D.N.Y. Aug. 5, 2003) ("District court decisions in this circuit have repeatedly held that complaint letters to the DOCS Commissioner or the facility Superintendent do not satisfy the PLRA's exhaustion requirements.") (collecting cases), with certain exceptions discussed below.
Degrafinreid's letter of September 9, 2004 is incorporated by reference in the Complaint. (See Compl. at ¶ 14; see also Singleton Decl., Exh. D.)
Degrafinreid has cited Marvin v. Goord, 255 F.3d 40 (2d Cir. 2003), which stands for the proposition that resolution of an issue through informal channels may satisfy the exhaustion requirement. See Marvin, 255 F.3d at 43 n. 3; see also Ortiz, 380 F.3d at 653-54 (citing Marvin in support of the principle that an inmate need not seek further relief once a favorable determination has been obtained). As no such resolution has been shown here, however, Marvin does not suggest that Degrafinreid's letters sent to Masterson and Spitzer satisfy the PLRA.
The remaining question, then, is whether "`special circumstances' have been plausibly alleged to justify `the prisoner's failure to comply with administrative procedural requirements.'" Hemphill, 380 F.3d at 686 (quoting Giano, 380 F.3d at 676). The Court of Appeals' recent decisions suggest that letters of the sort sent by Degrafinreid may, under certain circumstances, constitute exhaustion of available remedies. See id. at 686 n. 6. Such circumstances are not demonstrably present here, where Degrafinreid appears to have pursued one grievance as to certain of the conduct underlying the Complaint but not other conduct. Moreover, although Degrafinreid's September 9, 2002 letter to Masterson suggests that Degrafinreid made prior requests for various accommodations now the subject of his ADA claim, none of the purported prior requests or the responses to those requests have been set forth in the Complaint such as might substantiate a claim of futility, nor has it been suggested that Degrafinreid wrote the letters to Masterson or Spitzer pursuant to a possibly valid interpretation of DOCS grievance procedure.
Degrafinreid has argued that exhaustion may be excused if an inmate has been led to believe that an incident is not a grievance matter and would be otherwise investigated or that the filing of a grievance would be futile, and has asserted that, in this case, the pursuit of grievances was futile until the Court's intervention. As there are no allegations suggesting that Degrafinreid was led to believe that he was limited as to what subjects or concerns he could grieve and it does not appear that Degrafinreid ever grieved certain of the issues identified above, much less that the pursuit of such complaints became a futile exercise, no futility or other basis to excuse Degrafinreid from meeting the PLRA exhaustion requirement has been shown.
Degrafinreid has argued that he "attempted to appeal and his appeals were ignored." (Pl. Opp. Mem. at 3.) To the extent that he is referring to his Grievance and the appeals taken from the denial of his Grievance, it has not been shown how the denial of a single Grievance and subsequent appeal could establish the futility of further attempts to grieve. To the extent that Degrafinreid's reference to his appeals refers more broadly to his letters to Masterson and Spitzer, these efforts do not, for the reasons set forth above, excuse Degrafinreid from pursuing a grievance or demonstrate the futility of any attempt to pursue such a grievance.
In light of the foregoing discussion, Degrafinreid's ADA and negligence claims, insofar as they concern Defendants' alleged failure to provide Degrafinreid with a working hearing aid with working, operable batteries, have been fully exhausted. However, Degrafinreid's claims under 42 U.S.C. §§ 1983 and 1985, the PLRA, and the Eighth Amendment, as well as his claims for intentional infliction of emotional distress and assault arising out of the alleged beating on September 10, 2002 are dismissed without prejudice for failure to exhaust administrative remedies. Degrafinreid's claim against Ricks for liability under a theory of respondeat superior with regard to the "intentional torts of each and every other defendant committed within the scope of their employment" (Compl. at ¶ 42) is also dismissed without prejudice, as no intentional torts remain in the Complaint.
Although Defendants have argued to the contrary, Title II of the ADA does not require "a complainant to exhaust administrative remedies with DOJ prior to filing suit." Shariff v. Artuz, No. 99 Civ. 0321 (DC), 2000 WL 1219381, at *3 (S.D.N.Y. Aug. 28, 2000) (collecting cases). Nor does the PLRA require that a complainant exhaust administrative remedies under the ADA in addition to grieving his or her claims with DOCS.See Veloz v. New York, 339 F. Supp. 2d 505, 517-19 (S.D.N.Y. 2004) (collecting cases on both sides of the debate and concluding that a prison inmate need not exhaust administrative remedies under the ADA to satisfy the PLRA, since "[r]equiring prisoners to grieve with external agencies does not serve the underlying purpose of the [PLRA's] exhaustion requirement"). Accordingly, Degrafinreid need not exhaust administrative remedies provided by regulations promulgated under the ADA prior to filing suit.
Pursuant to the Court of Appeals' ruling in Ortiz, the presence of unexhausted claims in Degrafinreid's Complaint does not require dismissal of the Complaint in its entirety. See Ortiz, 380 F.3d at 662.
B. Defendants' Remaining Arguments Are Moot
As a result of the foregoing discussion, the only remaining claims in this action are Degrafinreid's ADA claim, to the extent brought against Defendants in their official capacity and seeking injunctive relief, and Degrafinreid's negligence claim, to the extent brought against Defendants in their individual capacities and seeking damages. Accordingly, Defendants' arguments that Degrafinreid has failed to state a claim under the PLRA, the Eighth Amendment or 42 U.S.C. § 1985 and that Degrafinreid's Section 1983 and respondeat superior claims against Superintendent Ricks should be dismissed are moot. Defendants' argument that supplemental jurisdiction over Degrafinreid's state claims should not be exercised in the absence of a viable federal claim is also moot, as a federal claim under the ADA remains.
Finally, Defendants' argument that they are entitled to qualified immunity is rejected, as qualified immunity is inapplicable to the federal claim remaining in the action. The doctrine of qualified immunity protects government officials from liability for civil damages so long as their conduct does not violate clearly established federal statutory or constitutional rights "of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). However, qualified immunity "is not a defense when [injunctive] relief is sought."African Trade Info. Ctr., Inc. v. Abromaitis, 294 F.3d 355, 360 (2d Cir. 2002). Accordingly, no such immunity is relevant with respect to the ADA claim.
Conclusion
For the reasons set forth above, Defendants' motion is granted in part and denied in part.
It is so ordered.