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finding that dismissal without prejudice for failure to exhaust administrative remedies pursuant to the PLRA "is a manner of termination not listed as excluded from the protection of § 205"
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02 Civ. 6934 (GBD).
January 27, 2005
KOOB AND MAGOOLAGHAN, New York, NY, Attorney for Plaintiffs. JENNY HUANG, ALEXANDER A. REINERT.
CHARLENE M. INDELICATO, Westchester County Attorney, White Plains, NY, Attorney for Defendants, JOSEPHINE TROVINI, Assistant County Attorney Of Counsel.
OPINION AND ORDER
Plaintiff Shani Gashi ("Plaintiff") brings the instant action under 42 U.S.C. § 1983, alleging that his rights under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution were violated by the defendants while he was in the custody of the Westchester County Jail and of correction officers employed by that jail. The defendants in this action are the County of Westchester ("the County"); Rocco Pozzi, Commissioner of the Westchester County Jail ("Commissioner Pozzi" or "Pozzi"); Correction Officer John Olimpio ("C.O. Olimpio"); Sergeant John Reilly ("Sergeant Reilly"); Correction Officer Adrian Coley ("C.O. Coley"); Correction Officer Donald Davis ("C.O. Davis"); Correction Officer Francis Delgrosso ("C.O. Delgrosso"); Correction Officer Robert Hoffman ("C.O. Hoffman"); Correction Officer Jose Pena ("C.O. Pena"); Correction Officer Sergeant Gary Johnson ("C.O. Johnson"), Sergeant Charles Burlingham ("Sergeant Burlingham"); Correction Officer Thomas Brophy ("C.O. Brophy"); Correction Officer Courtney Hubbard ("C.O. Hubbard"); Correction Officer Donald Kennie ("C.O. Kennie"); and Correction Officer John Uhl ("C.O. Uhl") (collectively, "Defendants"). Plaintiff also alleges that all of the defendants except the County "committed negligence and/or gross negligence." (Compl. ¶ 71).
Defendants have moved to dismiss the Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief may be granted, and have also submitted a letter brief "to request an order transferring this action to the White Plains Courthouse pursuant to Rule 22 of the Rules for the Division of Business Among District Judges." (Defendants' Letter of November 26, 2002 ["Def. Trans. Req."] at 1.) Defendants' motion to dismiss is evaluated under a different standard from their request that the case be transferred to the White Plains courthouse, and raises distinct legal issues. Therefore, despite Defendants' request that the two motions be considered "in conjunction with" one another because of an alleged inconsistency between Plaintiff's arguments in opposition to the two motions (Memorandum of Law in Support of Defendants' Motion to Dismiss the Complaint for Failure to State Claims Upon Which Relief May Be Granted ["Def. Mem."] at 8-9 n. 4), the two motions will be addressed seriatim. For the reasons stated below, both the motion to dismiss and the request for an order transferring this action are denied.
As explained below, see infra Part III.B., the alleged inconsistency is illusory.
I. Motion to Dismiss for Failure to State a Claim
A. Legal Standard
A motion to dismiss for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, should be granted "if, accepting all the allegations in the complaint as true and drawing all reasonable inferences in plaintiff's favor, the complaint fails to allege any set of facts that would entitle plaintiff to relief." Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 89-90 (2d Cir. 2004); Emergent Capital Inv. Mgmt., LLC v. Stonepath Group, Inc., 343 F.3d 189, 194 (2d Cir. 2003). The principle that "the court [i]s required . . . not to dismiss 'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief' . . . is to be applied with particular strictness when the plaintiff complains of a civil rights violation." Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
"In adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration 'to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial may be taken.'" Leonard F. v. Israel Discount Bank, 199 F.3d 99, 107 (2d Cir. 1999) (quoting Allen v. Westpoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991)). The Court takes judicial notice of the Memorandum and Order by Judge Charles L. Brieant that terminated an action previously brought by Plaintiff, Gashi v. County of Westchester, 99 Civ. 11466 (CLB) (S.D.N.Y. March 1, 2002), and of certain portions of the record in that action (which is referred to herein as the "1999 action"). The Court does not consider other documents attached to Defendants' Notice of Motion, or to the Declaration of Josephine Trovini in Support of Motion to Dismiss, of which it may not take judicial notice, or consider the Affidavit of Robert Orlando submitted by Defendants in support of their Motion to Dismiss. Certain documents attached to Defendants' submissions of which judicial notice might properly be taken, but which would not be relevant to the Court's decision, are also not considered.
B. Allegations
Plaintiff's Complaint alleges that, while in the custody of the Westchester County Jail, he was "violently, willfully, and maliciously assaulted" by correction officers on multiple occasions, and denied medical care following these assaults. He also alleges that, after he was transferred at his request to Rikers Island, Westchester County correctional staff once again assaulted him upon his return to Westchester County for a court appearance. These incidents are alleged to have taken place in August 1998, November 1998, and July 1999. In the summaries of each alleged incident that follow, the Court will assume the truth of Plaintiff's allegations, as it must in deciding a motion to dismiss under Rule 12(b)(6). Hartford Courant Co., 380 F.3d at 89-90.
1. The August 1998 Incident
The first assault occurred on the day that Plaintiff was admitted to the Westchester County Jail. Contemporaneously with this admission, Plaintiff was interviewed by a correction officer, and had difficulty understanding the interviewing officer. C.O. Olimpio was present at this interview. Shortly after the interview, C.O. Olimpio and other officers "willfully and maliciously" assaulted Plaintiff, causing "serious injuries . . . excruciating pain and suffering and emotional distress." (Compl. ¶ 22.) Following this assault, C.O. Olimpio "willfully and maliciously refused to provide [Plaintiff] medical care for the injuries he sustained . . . until hours later . . . resulting in additional unnecessary pain and suffering." (Compl. ¶ 23.)
2. The November 1998 Incident
On or about November 9, 1998 (while still in the Westchester County Jail), Plaintiff began to suffer from "an excruciatingly painful toothache." (Compl. ¶ 24.) Over the next two-and-a-half weeks, Plaintiff "repeatedly requested medical attention." (Id.) On the morning of November 26, 1998, Plaintiff requested medical attention and (per prison procedure) requested to see a Sergeant. (Compl. ¶ 25.) In response to these attempts to obtain medical care, an Emergency Response Team ("ERT") composed of defendants Sergeant Reilly, C.O. Coley, C.O. Davis, C.O. Delgrosso, C.O. Hoffman, C.O. Pena, and C.O. Schartau was deployed, "willfully and maliciously beat [Plaintiff], applied mechanical restraints, and dragged him to his cell." (Compl. ¶ 26.) Inside Plaintiff's cell, violent abuse of Plaintiff by the ERT continued: he was "kicked with boots, punched in the face," had his right ear twisted, and had two fingers shoved into his eye by one of the defendants. The ERT left, without any of its members calling for medical attention to address Plaintiff's injuries; it returned shortly thereafter and attacked plaintiff again, after which Plaintiff was "stripped of his clothes and left unconscious in his cell," and the ERT once again left without calling for medical attention for Plaintiff. (Compl. ¶¶ 27-28.) "The . . . assault and beating of Plaintiff on November 26, 1998 occurred under the supervision and/or with the participation of Sergeant Reilly." (Compl. ¶ 31).
Several hours after Plaintiff was finally brought to the infirmary for medical evaluation and was returned to his cell, he "was found unconscious in his cell suffering from a seizure." (Compl. ¶¶ 29-30.) The same ERT returned to Plaintiff's cell, accompanied by two nurses, and "willfully and maliciously watched as [Plaintiff] continued to suffer a seizure for an extended period of time." (Compl. ¶ 30.)
Plaintiff swore to a Notice of Claim regarding the events of November 1998 which was served on the County on February 18, 1999, but the County had not "pa[id], settle[d], compromise[d], or adjust[ed]" Plaintiff's claim by the time the Complaint was filed in August of 2002. (Compl. ¶¶ 32-33.)
3. The July 1999 Incident
Although Plaintiff had been transferred out of the Westchester County Jail at his attorney's request in February 1999, he was transferred back to Westchester County — in particular, to the Westchester County Supreme Court in White Plains — on or about July 19, 1999. Upon arrival, "[Plaintiff] was unnecessarily locked in a sweltering van for several hours with handcuffs and without ventilation . . . [and] [d]espite his repeated requests, corrections officers employed by the Westchester County Jail willfully and maliciously ignored his requests for water and to use the restroom." (Compl. ¶ 35.) When Plaintiff was finally escorted to the courtroom, by defendants Sergeant Johnson, Sergeant Burlingham, C.O. Brophy, C.O. Hubbard, C.O. Kennie, and C.O. Uhl, those defendants "willfully and maliciously assaulted and beat [him] in an elevator en route to the courtroom, causing him to suffer serious physical injury and emotional distress." (Compl. ¶¶ 36-37.) This "occurred under the supervision and/or with the participation of Sergeant Johnson." (Compl. ¶ 38.)
Plaintiff swore to a notice of claim regarding the July incident that was served on the County on August 5, 1999, but the County had not "pa[id], settle[d], compromise[d], or adjust[ed]" Plaintiff's claim by the time the Complaint was filed in August of 2002. (Compl. ¶¶ 39-40.)
C. Analysis
Defendants make three distinct arguments for the legal insufficiency of the complaint as a whole. They assert that Plaintiff has failed to exhaust his administrative remedies, that the action is barred under the doctrines of res judicata and collateral estoppel because "a previous judgment on the merits was issued concerning the same parties, issues and claims," and that "the complaint is untimely" under the relevant statute of limitations. (Def. Mem. at 8.) Defendants also argue that, even if the Complaint is held sufficient as to the Individual Defendants other than Commissioner Pozzi, it does not state a claim for municipal liability by the County or supervisory liability by Commissioner Pozzi.
1. Exhaustion
The Prison Litigation Reform Act (" PLRA"), Pub.L. No. 104-134, 110 Stat. 1321 (1996), provides in part that "[n]o action shall be brought with respect to prison conditions under [ 42 U.S.C. § 1983], 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.S. § 1997e(a) (2004). The Supreme Court has interpreted this requirement to apply 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). Thus, if the instant action is considered to have been brought by an "inmate" — that is, by a "prisoner confined in any jail, prison or other correctional facility" within the meaning of the PLRA — exhaustion of administrative remedies would be required. Defendants assert that this exhaustion requirement indeed applies, and that Plaintiff has not satisfied it.
Whether the PLRA's exhaustion requirement applies depends upon whether the plaintiff in an action is a "prisoner confined in any jail, prison, or correctional facility" when the "action [is] brought," 42 U.S.C.S. § 1997e(a) (2004). This rule is apparent from the text of the exhaustion requirement, and was confirmed by the Second Circuit in Greig v. Goord, 169 F.3d 165 (2d Cir. 1999), which held that "litigants . . . who file prison condition actions after release from confinement are no longer 'prisoners' for purposes of § 1997e(a) and, therefore, need not satisfy the exhaustion requirements of this provision." 169 F.3d at 167. A plaintiff is subject to the exhaustion requirement of § 1997e(a) if (and only if) he "was a confined prisoner at the time he filed his lawsuit." Berry v. Kerik, 366 F.3d 85, 87 (2d Cir. 2003).
When the complaint in the instant action was filed in August 2002, Plaintiff was "in the custody of [what was then] the Immigration and Naturalization Service [("INS")] in York County, Pennsylvania." (Compl. ¶ 3.) He may have then been "confined" in a "jail, prison or correctional facility," 42 U.S.C.S. § 1997e(a) (2004), although it is not entirely clear from the current record whether he was confined in one of those three sorts of facilities or in a single-purpose INS detention center. Even assuming that Plaintiff was confined in a jail, prison, or correctional facility at the time he filed the complaint in the instant action, the PLRA's exhaustion requirement is applicable to him only if he was also then a "prisoner" as that term is used in § 1997e(a), since § 1997e(a) by its terms only applies to "prisoner[s]" who are so confined.
For purposes of the portion of the PLRA that includes § 1997e(a), a "prisoner" is defined as "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." 42 U.S.C.S. § 1997e(h) (2004). Interpreting the identically worded definition of "prisoner" that the PLRA provides for purposes of its restrictions on in forma pauperis litigation, 28 U.S.C. § 1915(h), three Courts of Appeals have concluded that a person detained by the INS pending deportation is not a "prisoner".Agyeman v. INS, 296 F.3d 871, 885-886 (9th Cir. 2002);LaFontant v. INS, 135 F.3d 158, 165 (D.C. Cir. 1998); Ojo v. INS, 106 F.3d 680, 682-83 (5th Cir. 1997). In LaFontant andOjo,, although not in Agyeman, the detained plaintiff who was determined not to be a "prisoner" had been previously convicted of a crime. Nevertheless, despite the fact that this conviction had "[i]n some sense . . . caused [the] detention", the § 1915(h) definition of a "prisoner" was held not to encompass someone whose "detention [wa]s for a violation of immigration law rather than criminal law," Ojo, 106 F.3d at 682. In LaFontant, the government even conceded that this holding was correct. 135 F.3d at 165.
This Court finds the reasoning of Ojo, LaFontant, andAgyeman persuasive. The list of reasons for confinement that § 1915(h) explicitly specifies as rendering someone a "prisoner" is extensive, but does not include detention pending deportation; "the absence of immigration regulations from the laundry list of other things one might violate [such as] parole, probation, and the like," Ojo, 106 F.3d at 682, implies that confinement for a violation of immigration regulations is not included within the § 1915(h) definition. "Had Congress wished to include immigration violations in this provision, it easily could have said so." Ojo, 106 F.3d at 682. And since "deportation proceedings are civil, rather than criminal, in nature," Agyeman, 296 F.3d at 886, persons detained in the course of deportation need not be considered analogous to persons detained in the course of criminal prosecution; a distinction between the two classes of detainees is entirely reasonable. Persons detained pending deportation are more analogous to persons civilly detained under a sexual-predator statute or following a verdict of not guilty by reason of insanity, who have also been held not to be "prisoners" for PLRA purposes, see Troville v. Venz, 303 F.3d 1256, 1260 (11th Cir. 2002); Kolocotronis v. Morgan, 247 F.3d 726, 728 (8th Cir. 2001); Page v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000). Therefore, this Court agrees that "[w]hen [a plaintiff] [i]s detained . . . under the INA for deportation purposes, he bec[omes] an 'alien detainee,' not a 'prisoner.'" LaFontant, 135 F.3d at 165 (citing Ojo, 106 F.3d at 683).
Accepting the holding of Ojo, LaFontant and Agyeman implies that an INS detainee could only be a "prisoner" subject to the exhaustion requirement of 42 U.S.C. § 1997e(a) if the PLRA definition of "prisoner" codified at 42 U.S.C. § 1997e(h) had a different meaning than the identically worded PLRA definition of "prisoner" codified at 28 U.S.C. § 1915(h). It is a "normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same meaning."Gustavson v. Alloyd Co., 513 U.S. 561, 570 (1995) (internal quotations omitted). Admittedly, "this 'presumption is not rigid,' and the meaning of identical words 'well may vary to meet the purposes of the law.'"Theodoropoulos v. INS, 358 F.3d 162, 171 (2d Cir. 2002) (quoting United States v. Cleveland Indians Baseball Co., 532 U.S. 200, 213 (2001)). There is, however, no apparent difference between the purposes of those parts of the PLRA subject to the 42 U.S.C. § 1997e(h) definition of "prisoner", and those parts of the PLRA subject to the 28 U.S.C. § 1915(h) definition of "prisoner", that would support the normally disfavored conclusion that the two identically-worded definitions have different meanings. The restrictions on in forma pauperis filings contained in 28 U.S.C. § 1915 and subject to the § 1915(h) definition of "prisoner", and the exhaustion requirement and substantive restrictions contained in 42 U.S.C. § 1997e and subject to the § 1997e(h) definition of "prisoner", both serve the same primary goal of the PLRA: they make it more difficult for incarcerated prisoners to file frivolous litigation as a sort of recreational activity. See Greig, 169 F.3d at 167;Nicholas v. Tucker, 114 F.3d 17, 20-21 (2d Cir. 1997).
Thus, the identical language in 28 U.S.C. § 1915(h) and 42 U.S.C. § 1997e(h) should be construed to have the same meaning. INS detainees like Plaintiff, who according to Ojo, LaFontant, and Agyeman are not "prisoners" under the § 1915(h) definition of that term, are therefore also not "prisoners" under the § 1997e(h) definition that is applicable to the exhaustion requirement of § 1997e(a). The Court of Appeals for the Fifth Circuit implicitly recognized this when it citedOjo for the proposition that "the PLRA does not apply to alien detainees" and thus "[the Court of Appeals'] previous decisions regarding federal prisoners and exhaustion of administrative remedies [we]re not directly applicable" to a suit by an alien detainee. Edwards v. Johnson, 209 F.3d 772, 776 (5th Cir. 2000).
Since Plaintiff was not a "prisoner" for purposes of § 1997e(a) when he filed the complaint in the instant action, under Greig the exhaustion requirement of § 1997e(a) does not apply; the fact that the events complained of apparently occurred while Plaintiff was a "prisoner" is irrelevant. One could perhaps argue that Plaintiff does not fit within the literal language of the Greig holding because he did not file this action "after release from confinement," Greig, 169 F.3d at 167, but merely after a change in the nature of his confinement. (Defendants make a similar argument, though not in precisely those terms.) This change in the nature of Plaintiff's confinement, however, rendered him no longer a "prisoner" as that term is used in the PLRA. To apply the PLRA's exhaustion requirement to someone who is not a "prisoner" at the time his action is filed would be inconsistent with the text of § 1997e(a) and the logic ofGreig. An action is subject to the exhaustion requirement of § 1997e(a) only if it is "brought" by a "prisoner"; this action was not brought by a "prisoner", as that word is defined in the PLRA, but rather by a civil detainee. See Agyeman, 296 F.3d at 886;LaFontant, 135 F.3d at 165; Ojo, 106 F.3d at 682. Thus, the § 1997e(a) exhaustion requirement does not apply.
The complaint in the instant action does not indicate the legal basis upon which Plaintiff was in the custody of the Westchester County Jail at the time of the events alleged. Thus, based on the complaint alone, the Court would not be able to rule out the possibility that Plaintiff was then an immigration detainee. The record in the 1999 action does indicate that Plaintiff was confined as a result of being accused of, and sentenced for, criminal offenses. While the record before the court on motions for summary judgment in that action is relevant to determine the collateral estoppel effect (if any) of the grant of summary judgment in that action, however, this Court perhaps ought not assume the truth of facts conceded on a motion for summary judgment in a different action for purposes of deciding the instant motion to dismiss. In any event, it is not relevant here whether Plaintiff's actual status in 1998 and 1999 differed from the status he was assumed to have had for the purpose of the grant of summary judgment in the 1999 action.
Defendants cite only one on-point authority for the proposition that the PLRA's exhaustion requirement applies to persons who were detained by the INS at the time they filed suit: the Report and Recommendation in Despaigne v. Monroe, 99 Civ. 5004 (JSR)(KNF), 2001 U.S. Dist. LEXIS 13731 (S.D.N.Y. September 5, 2001). The holding of Despaigne on this issue is merely an implied one, however; the question whether an INS detainee is a "prisoner" as that term is used in the PLRA is not explicitly addressed in the Report and Recommendation. The implied holding of Despaigne is not binding on this Court, and this Court declines to follow it.
Since the exhaustion provision of the PLRA does not command a different result, this case is governed by the general rule that "[o]rdinarily, plaintiffs pursuing civil rights claims under 42 U.S.C. § 1983 need not exhaust administrative remedies before filing suit in court." Porter, 534 U.S. at 523. Therefore, whether or not Plaintiff has in fact exhausted his administrative remedies, his complaint may not be dismissed for failure to exhaust. In light of this conclusion, it is unnecessary for this Court to pass upon the validity of Plaintiff's claim that he has in fact exhausted his remedies and that Defendants have not sustained their affirmative burden of showing that he did not do so.
2. Res Judicata and Collateral Estoppel
The basis for Defendants' claims of res judicata and collateral estoppel (also known as claim preclusion and issue preclusion) is a previous suit by Plaintiff against many of the same defendants, in which Plaintiff asserted many of the same claims. That previous action, Gashi v. County of Westchester, 99 Civ. 11466 (CLB) (the "1999 action"), was filed on November 19, 1999, and terminated by a grant of summary judgment to the defendants on March 1, 2002.
a. Res Judicata
Res judicata does not apply here because the claims that Plaintiff now brings were previously dismissed without prejudice. "It is well established that a dismissal without prejudice has no res judicata effect on a subsequent claim." Camarano v. Irvin, 98 F.3d 44, 47 (2d Cir. 1996). "The primary meaning of 'dismissal without prejudice' . . . is dismissal without barring the defendant from returning later, to the same court, with the same underlying claim." Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 405 (2001); accord Rinieri v. News Syndicate Co., 385 F.2d 818, 821 (2d Cir. 1967) ("a dismissal without prejudice permits a new action (assuming the statute of limitations has not run) without regard to res judicata principles"). Plaintiff's claims of excessive force were dismissed without prejudice, and thus can be brought again in the same court. The portions of the 1999 action that were dismissed with prejudice, namely Plaintiff's claim of discrimination based on national origin and his claims against Nurse Maria Appolonio and COs Rose and Manno, have not been brought again in the instant action. Thus, Defendants' res judicata argument lacks merit.
b. Collateral Estoppel
Defendants' collateral estoppel argument is more plausible, but also ultimately fails. Defendants assert that since the initial dismissal without prejudice was based on a determination that Plaintiff was required to exhaust his administrative remedies and had not done so, Plaintiff may not now seek to relitigate the issue of whether he was required to exhaust. The flaw in this logic is that Plaintiff does not seek to relitigate the issue of whether a plaintiff detained as part of a criminal sentence of imprisonment at the time he files a lawsuit must exhaust administrative remedies. Rather, Plaintiff seeks to litigate, for the first time, the issue of whether a plaintiff detained in INS custody at the time he files a lawsuit must exhaust administrative remedies. Collateral estoppel, or issue preclusion, requires that the issue precluded be identical to one "actually litigated and actually decided" in a prior proceeding. Epperson v. Entertainment Express, Inc., 242 F.3d 100, 108 (2d Cir. 2001). Here, the issues are different.
Defendants argue that "nothing has changed between the time of Judge Brieant's decision [to grant summary judgment], when [P]laintiff was already in INS custody, and the re-filing of this action." (Reply Memorandum of Law in Further Support of Defendants' Motion to Dismiss the Complaint ["Def. Rep."] at 7.) Even if literally true, this misses the point. Whether the PLRA's exhaustion requirement is applicable to an action depends on whether the plaintiff in that action was a "prisoner confined in any jail, prison, or correctional facility," 42 U.S.C.S. § 1997e(a) (2004), at the time the complaint was filed. Berry v. Kerik, 366 F.3d 85, 87 (2d Cir. 2003); Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999). Plaintiff's status at the time the summary judgment motion in the 1999 action was decided was not legally determinative; at issue, rather, was his status at the time of the filing of the complaint in that action.
The initial complaint in the 1999 action was filed on November 19, 1999. When summary judgment was granted in that action, it was granted on a record that included Plaintiff's statements that he had been sentenced for possessing stolen property and burglar's tools on September 30, 1999, and that he was still in Marcy Correctional Facility and then Greenhaven Correctional Facility as of August of 2000. (Plaintiff's Rule 56.1 Stmt. ¶ 3; Aff. of Shani Gashi in Support of Pl. Opp. to Def. Motions for Summ. Judgment, ¶¶ 2-3, 34-35.) Thus, when summary judgment was granted in the 1999 action, it was on a record that made clear Plaintiff's status as a "prisoner confined in any jail, prison, or correctional facility," 42 U.S.C.S. § 1997e(a) (2004), at the time the complaint was filed.
Regardless of whether "nothing . . . changed" (Def. Rep. at 7) between the time the motion for summary judgment in the 1999 action was decided, and the time the motion to dismiss in this action was filed, something significant did change between the time the complaint in the 1999 action was filed and the time the complaint in this action was filed, according to the record before the court on the motion for summary judgment in the 1999 action and the allegations of the complaint in this action. Plaintiff went from being confined in a correctional facility pursuant to a criminal sentence, to being detained by the INS pending deportation. As discussed above, this altered Plaintiff's status from that of a "prisoner" under the PLRA to that of a non-"prisoner" under the PLRA, and thus rendered the PLRA's exhaustion requirement inapplicable to him. Plaintiff cannot be collaterally estopped from pointing out that, with respect to exhaustion, the facts at issue in this action differ in a relevant way from the facts that were the basis for the grant of summary judgment in the 1999 action.
3. Timeliness
Defendants argue that Plaintiff's complaint, filed on August 30, 2002, is time-barred "since the last act forming the basis of [P]laintiff's claims occurred in July, 1999" and "the applicable statute of limitations for Section 1983 actions in New York is three years." (Def. Mem. at 16-17.) Plaintiff counters that the complaint is timely because of New York State's "savings statute", N.Y.C.P.L.R. § 205(a) (Memorandum of Law in Support of Plaintiff's Opposition to Defendants' Motion to Dismiss ["Pl. Mem."] at 17-20), and because even if that statute does not apply the statute of limitations should be considered tolled during the pendency of Plaintiff's 1999 action.
It is indeed the case that "[f]or § 1983 actions arising in New York, the statute of limitations is three years." Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994). Defendants are thus correct that if no statutory exception or period of tolling applied, Plaintiff's complaint would be time-barred. A potentially applicable exception, however, does exist.
Just as the statute of limitations period of three years for § 1983 actions arising in New York is derived from New York law,Eagleston, 41 F.3d at 871, the rules regarding the running of that limitations period will generally be derived from New York law. "The Supreme Court has instructed that in section 1983 actions, we borrow not only a state's limitations period but also its 'tolling rules' . . . unless applying the state's tolling rules 'would defeat the goals of the federal statute at issue'."Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002) (quoting Board of Regents v. Tomanio, 446 U.S. 478, 484-86, andHardin v. Straub, 490 U.S. 536, 539 (1989)). New York law provides that
if an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff . . . may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.
N.Y.C.P.L.R. § 205(a) (McKinney 2004). This provision in effect operates to toll the statute of limitations during the pendency of an action (if that action is not dismissed for one of the listed reasons). Cecere v. County of Westchester, 814 F. Supp. 378, 381 (S.D.N.Y. 1993).
If C.P.L.R. § 205(a) applied here, it would render the instant action timely. Plaintiff's 1999 action was timely brought, since the earliest incident of which he complains took place in 1998. The 1999 action was terminated, as to the claims brought in this action, by a dismissal without prejudice for failure to exhaust, which is a manner of termination not listed as excluded from the protection of § 205(a), so § 205(a) would grant Plaintiff six months from that termination to file a new action. See Hakala v. Deutsche Bank AG, 343 F.3d 111, 113 (2d Cir. 2003) (mentioning "failure to exhaust an administrative prerequisite" as one of the reasons for dismissal that will invoke the protection of C.P.L.R. § 205(a)); Mahoney v. Board of Education, 493 N.Y.S.2d 839, 839-40 (App.Div. 1985) (holding that "petitioner was entitled to the six-month extension of the time within which a proceeding must be commenced following a prior dismissal pursuant to CPLR 205(a)" where petitioner's previous action had been "dismiss[ed] for failure to exhaust administrative remedies"). The order terminating the 1999 action was dated March 1, 2002; this action was filed on August 30, 2002, less than six months thereafter. Though it is not clear from the record whether service upon the Defendants was affected within the six-month period prescribed by C.P.L.R. § 205(a), this is a moot point since state law regarding the method or timing of service of process is not borrowed along with the statute of limitations, where the underlying cause of action is federal. West v. Conrail, 481 U.S. 35, 39-40 (1987); Cecere, 814 F. Supp. at 381. Thus, all the requirements of C.P.L.R. § 205(a) that would apply if that provision were to be borrowed have been satisfied. The only remaining issue is whether § 205(a) should indeed be borrowed in this case.
Even if C.P.L.R. § 205(a) were to be read in the federal context as tolling the statute of limitations only during the pendency of the first action and not for an additional six months thereafter, see Cecere, 814 F. Supp. at 381, it would be sufficient (if applicable) to render this action timely. The 1999 action was filed roughly fifteen months after the earliest action complained of, so that after running for an additional period of less than six months, the three-year statute of limitations would have more than a year remaining.
Defendants cite Spampinato v. City of New York, 311 F.2d 439 (2d Cir. 1962), for the proposition that C.P.L.R. § 205(a) "is not applicable to Civil Rights cases." (Def. Rep. at 7.) That is an unsupportable reading of Spampinato, which construed Section 23 of the New York Civil Practice Act, a narrower predecessor of current C.P.L.R. § 205(a), and did not hold even that Section 23 was universally inapplicable to civil rights cases.
Spampinato upheld a grant of summary judgment dismissing a civil rights action largely identical to one already dismissed for failure to state a claim within the court's jurisdiction,see Spampinato v. M. Breger Co., 166 F. Supp. 33 (E.D.N.Y. 1958), aff'd, 270 F.2d 46 (2d Cir. 1959). The per curiam opinion stated in relevant part that "[t]he action against the individual defendant, so far as it is based on 42 U.S.C. § 1983 must fail by reason of prior adjudication" and that "[s]o far as the case may purport to be based on a claim under 42 U.S.C. § 1985 not litigated in the earlier case, Section 23 of the New York Civil Practice Act does not apply and the New York Statute of Limitations bars the action." 311 F.2d at 440. This was merely a recognition of the fact that Section 23 of the Civil Practice Act, which was "at most applicable to permit the commencement of 'a new action for the same cause.'," Macris v. Sociedad Maritima San Nicolas, S.A., 271 F.2d 956, 958 (2d Cir. 1959), could not save a particular cause of action not previously litigated; it in no way implied that Section 23 would have been inapplicable to a civil rights cause of action if that cause of action had been previously litigated. Even the actual holding of Spampinato, regarding the inapplicability of Section 23 to a specific cause of action not previously litigated, would not necessarily apply to C.P.L.R. § 205(a) as it currently exists, since current § 205(a) speaks not of "a new action for the same cause" but more broadly of "a new action upon the same transaction or occurrence or series of transactions or occurrences," N.Y.C.P.L.R. § 205(a) (McKinney 2004). See Harris v. U.S. Liability Ins. Co., 746 F.2d 152, 153-54 (2d Cir. 1984) (noting that "in 1978, the New York State legislature amended § 205(a) by substituting this language for a prior wording that did require suit upon the same cause of action to trigger the saving benefits of the statutory provision" and reversing the district court's ruling that § 205(a) "was inapplicable because the second suit involved a different cause of action than that of the first.").
Besides their inaccurate description of Spampinato, Defendants offer only two other case citations to support their argument that C.P.L.R. § 205(a) should not apply where a civil rights case has been dismissed under the PLRA for failure to exhaust. One of the cases cited has recently been vacated on appeal, Hemphill v. New York, 198 F. Supp. 2d 546 (S.D.N.Y. 2002), vacated, 380 F.3d 680 (2d Cir. 2004), and in any event speaks to the issue only in language that may be dictum. The cited language from the other case, Thomas v. Henry, 02 Civ. 2584 (JSR)(DFE), 2002 Dist. LEXIS 8086 (S.D.N.Y. May 7, 2002), at *4 (noting that "it might be a waste of money" for the prisoner plaintiff to exhaust his remedies and refile because "it appears the statute of limitations would bar any re-filing"), is clearly dictum.Thomas and Hemphill indicate only that two courts whose ultimate decision did not depend on C.P.L.R. § 205(a) may not have had it brought to their attention. They do not actually hold that § 205(a) is inapplicable to dismissals of civil rights claims under the PLRA for failure to exhaust, and this Court is not persuaded by them that it should so hold.
Defendants also argue (without supporting authority) that Plaintiff's positions on the statute of limitations issue and the PLRA exhaustion issue are inconsistent. They contend that "by asserting that this second filing 'relates back' to the previous filing, [P]laintiff attempts to have it both ways: he seeks to evade the Statute of Limitations by asserting that this second filing relates back, yet he does not accept the relation back for purposes of the PLRA." (Def. Rep. at 8.) This is incorrect. The doctrine of "relation back", which Plaintiff has not invoked, is based on C.P.L.R. § 203(f) or Federal Rule of Civil Procedure 15(c) and applies to amended pleadings filed in a single action; it is not the same thing as the permission to file a new action that is given by C.P.L.R. § 205(a). See Fed.R.Civ.P. 15(c) ("Relation back of amendments"); N.Y.C.P.L.R. § 205(a) (McKinney 2004) ("New action by plaintiff"); Diffley v. Allied-Signal, Inc., 921 F.2d 421, 423 (2d Cir. 1990) ("Section 205(a) neither confers jurisdiction over the [previous] action nor 'relates back' to that action to cure any other defect. It . . . allows the plaintiffs an additional six months in which to bring another action based on the same occurrences, after their timely initial complaint was dismissed for procedural defects."); Bank of New York v. Midland Ave. Dev. Co., 669 N.Y.S.2d 622, 623-24 (App. Div. 1998) (discussing relation back under § 203(f) and filing of a new action under § 205(a) as separate possibilities). There is therefore no inconsistency in treating this new action as distinct from the old for purposes of the PLRA, and yet applying § 205(a) to toll the statute of limitations for the new action.
The question whether to apply § 205(a) thus reduces to the question whether "applying the state's tolling rules 'would defeat the goals of the federal statute at issue'." Pearl, 296 F.3d at 80 (quoting Tomanio, 446 U.S. at 484-86, and Hardin, 490 U.S. at 539 (1989)). Neither "§ 1983's chief goals of compensation and deterrence . . . or its subsidiary goals of uniformity and federalism," Hardin, 490 U.S. at 539 (citingTomanio, 446 U.S. at 488-492), would be defeated by applying § 205(a)'s tolling rule. Whether applying that rule would defeat the goals of the PLRA is a closer question.
Borrowing § 205(a) would render the exhaustion requirement of the PLRA effectively inapplicable to any prisoner in New York State who ceased to be a "prisoner" (for PLRA purposes) within six months of the dismissal of his original complaint without prejudice for failure to exhaust, and who still wished to pursue his action after he ceased being a "prisoner". Such an outcome does give the Court some pause. However, insofar as the purpose of the PLRA was to dissuade prisoners from filing frivolous litigation as a recreational activity, see Greig, 169 F.3d at 167, this purpose would not be defeated by effectively exempting some litigation that is sufficiently non-frivolous to motivate prisoners to pursue it when they are no longer "prisoners", and thus presumably in less need of recreational activity. Cf. Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998) (noting that "[o]pportunity costs of litigation rise following release, diminishing the need for special precautions against weak suits."). Greig's holding that the PLRA does not apply to released prisoners because "[its] justifications simply do not apply to individuals who were formerly incarcerated," 169 F.3d at 167, implies that the goals of the PLRA speak only to what restrictions ought to be placed on "prisoners" within the criminal justice system. Plaintiff, admittedly, is not completely at liberty, but as previously discussed, see supra Part III.A.1., he is not a "prisoner" within the meaning of the PLRA; under Greig, this means that it will not offend the goals of the PLRA for him to receive more lenient procedural treatment than plaintiffs who are "prisoners" under the PLRA.
Therefore, the Court holds that C.P.L.R. § 205(a) applies to toll the statute of limitations for this action. As explained above, this holding leads to the conclusion that the instant action is timely brought.
4. Municipal and Supervisory Liability
Defendants argue that Plaintiff's complaint fails to state a claim against the County because Plaintiff "has not alleged that his constitutional injuries resulted from a policy or practice of the County, and that the individual defendants' actions were taken pursuant to the County's policy or practice." (Def. Mem. at 17.) Defendants also argue that Plaintiff's complaint fails to state a claim against Commissioner Pozzi because there are insufficient allegations that "constitutional deprivations to plaintiff" resulted from actions taken by Pozzi personally. (Def. Mem. at 18-19.)
Plaintiff's allegations regarding the involvement of the County and the involvement of Commissioner Pozzi are quite similar. It is alleged that both the County and Pozzi "knew . . . or should have known" that the County employees and subordinates of Pozzi who unlawfully mistreated Plaintiff had a "propensity" to do so, and that both the County and Pozzi "subsequently failed to institute, create, or enforce policies or procedures to effectively curtail such unlawful activity." (Compl. ¶¶ 43-44, 65, 68.) It is also alleged that the mistreatment of Plaintiff was "pursuant to the customs and practices of the Westchester County Jail", and that those "unlawful customs and practices" were known to the County and to Pozzi. (Compl. ¶ 41.) Plaintiff argues that the County's liability derives from these policies and practices, and also derives from Pozzi's liability, on the theory that Pozzi was a "policymaking official" for whose actions the County is responsible. (Pl. Mem. at 22.)
Defendants contend that Plaintiff must either allege a formal policy or practice of the County or "demonstrate a widespread and long-standing custom or practice of [the County] by alleging facts beyond his own case that constitute similar unconstitutional conduct." (Def. Mem. at 18.) It is true that "[i]n a suit under 42 U.S.C. § 1983, a municipality may not be held liable on a theory of respondeat superior." Jeffes v. Barnes, 208 F.3d 49, 56 (2d Cir. 2000) (citing Monell v. Department of Social Services, 436 U.S. 658, 694 (1978)). Thus, the allegation that Plaintiff's injuries were inflicted by County employees is not sufficient by itself to state a claim against the County.
Plaintiff has gone further than that, however. He has alleged that his mistreatment by corrections staff was pursuant to the customs and practices of the Westchester County Jail — very close to an allegation that his mistreatment was pursuant to customs and practices of the County itself, which even standing alone would likely be sufficient to survive a motion to dismiss. See Tsotesi v. Bd. of Educ., 258 F.Supp. 2d 336, 337-38 n. 10 (S.D.N.Y. 2003) (citing Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 166-69 (1993), for the proposition that "[t]he plaintiff is not obliged to plead evidence supporting his allegations of the existence of a custom or policy that allegedly caused the injury in question"). Moreover, an explicitly alleged or proven policy or custom going beyond the incidents in which Plaintiff was harmed is not a necessary precondition for municipal liability, under the law as the Court of Appeals for the Second Circuit has explained it.
The Court of Appeals has instructed that "a [municipal] employee's single tortious decision or course of action . . . may be said to represent the conscious choices of the municipality itself" — that is, to "constitute the act of the municipality and therefore provide a basis for municipal liability" — if "it is taken by, or is attributable to, one of the [municipality]'s authorized policymakers." Amnesty America v. Town of West Hartford, 361 F.3d 113, 126 (2d Cir. 2004). Here, since the actual physical abuse was allegedly committed by subordinate municipal employees, "municipal liability turns on the plaintiff['s] ability to attribute the subordinates' conduct to the actions or omissions of higher ranking officials with policymaking authority." Id. One "method of implicating a policymaking official through subordinates' conduct is to show that the policymaker was aware of a subordinate's unconstitutional actions, and consciously chose to ignore them, effectively ratifying the actions." Id. That is, "where a policymaking official exhibits deliberate indifference to constitutional deprivations caused by subordinates, such that the official's inaction constitutes a 'deliberate choice,' that acquiescence may 'be properly thought of as a city 'policy or custom' that is actionable under § 1983.'" Id. (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)). Plaintiff could defeat the instant motion to dismiss on the theory that he has sufficiently alleged Commissioner Pozzi, a policymaking official, to have exhibited such deliberate indifference.
The threshold question in evaluating this theory is whether Commissioner Pozzi is indeed a policymaking official whose actions or omissions can be attributed to the County. "Municipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered." Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986) (plurality opinion of Brennan, J.). A policymaking official for these purposes need not be the overall executive head of a municipality; lesser officials can qualify. See, e.g., Amnesty America, 361 F.3d at 127 (town chief of police conceded to "ha[ve] final policymaking authority with respect to the actions of the police force"); Mandell v. County of Suffolk, 316 F.3d 368, 385 (2d Cir. 2003) (county police commissioner held to have "final policymaking authority" with respect to retaliatory personnel decisions); Jeffes, 208 F.3d at 61 (county sheriff held to be "the County's final policymaking official with respect to the conduct of his staff members toward fellow officers who exercise their First Amendment rights to speak publicly or to inform government investigators of their co-workers' wrongdoing"). "Whether a particular official has 'final policymaking authority,' Pembaur, 475 U.S. at 483 (plurality opinion of Brennan, J.), such that his decisions may trigger municipal liability, is to be determined by referring to state law." Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 143 (2d Cir. 1999). At all relevant times, New York State law provided that "[i]n the county of Westchester, the county commissioner of correction shall have custody of all county correctional facilities." N.Y. Correct. Law § 500-c(2) (Consol. 1999); see N.Y. Correct. Law § 500-c note (Consol. 2000) (detailing statutory history). Plaintiff cites this provision as rendering Commissioner Pozzi the sort of policy-making official whose authority is sufficient to lead to municipal liability (Pl. Mem. at 22), and Defendants do not appear to dispute this in their reply brief, focusing instead on whether the underlying liability of Pozzi himself has been sufficiently alleged (Def. Rep. at 9-10).
Defendants assert that "Plaintiff['s] Complaint is devoid of any facts to support allegations of intentional wrongdoing or personal involvement by defendant Pozzi." (Def. Mem. at 18; Def. Rep. at 9.) This is true only if one takes a fairly narrow view of what constitutes intentional wrongdoing, or a very strict view of the specificity required of "facts" in this context. Plaintiff does allege that Pozzi knew or should have known that his subordinates had a propensity to unnecessarily and inhumanely mistreat Plaintiff, and that Pozzi nevertheless "subsequently failed to institute, create, or enforce policies or procedures to effectively curtail such unlawful activity" (Compl. ¶ 44). While Defendants contend that "[P]laintiff ha[s] failed to particularize the conduct allegedly undertaken by defendant Pozzi that would be sufficient to sustain a claim for a constitutional violation" (Def. .Mem. at 19; Def. Rep. at 10), greater particularity beyond the basic requirement that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed.R.Civ.Pro. 8(a)(2), is not required of complaints in § 1983 actions, even § 1983 actions against municipalities. Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 168 (1993). The question, then, is whether municipal or supervisory liability exists under § 1983 where a supervisor and policymaker knew, or should have known, that unconstitutional abuse would occur, and yet "failed to institute, create, or enforce policies or procedures to effectively curtail such unlawful activity." (Compl. ¶ 44.)
Municipal liability on a theory of failure to supervise would exist if Plaintiff were able to establish that "a policymaking official had notice of a potentially serious problem of unconstitutional conduct, such that the need for corrective action or supervision was 'obvious' . . . and the policymaker's failure to investigate or rectify the situation evidences deliberate indifference, rather than mere negligence or bureaucratic inaction." Amnesty America, 361 F.3d at 128 (quoting Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995)). Municipal liability on a theory of failure to train would exist if Plaintiff were able to "establish . . . that the . . . purported failure to train occurred under circumstances that could constitute deliberate indifference," and also to "identify a specific deficiency in the city's training program and establish that that deficiency is 'closely related to the ultimate injury,' such that it 'actually caused' the constitutional deprivation." Amnesty America, 361 F.3d at 129 (quoting City of Canton v. Harris, 489 U.S. 378, 391 (1989)). If Plaintiff were to prove, consistently with his allegations, that Pozzi knew of his subordinates' propensity to abuse Plaintiff and deliberately did nothing to effectively curtail it, Plaintiff could potentially establish liability under either or both of the above theories.
Any uncertainty regarding whether it would be sufficient to show only that Pozzi "should have known" of his subordinates' propensity to abuse Plaintiff, see, e.g., Sango v. New York, 83 CV 5177 (JMM), 1989 U.S. Dist. LEXIS 18214 (E.D.N.Y. June 19, 1989), at *25 (Ross, then M.J.), adopted, 1989 U.S. Dist. LEXIS 18212 (E.D.N.Y. July 25, 1989) (McLaughlin, D.J.) (stating that "not only actual but also constructive notice of constitutional violations on the part of city policymakers can serve as the basis for a finding of deliberate indifference rendering a municipality liable under § 1983"), does not affect the proper disposition of Defendants' motion: the Federal Rules of Civil Procedure permit the pleading of claims in the alternative, see Fed.R.Civ.Pro. 8(e)(2), and Plaintiff does plead in the alternative that Pozzi "knew".
Thus, it does not "appear beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," Conley v. Gibson, 355 U.S. 41, 45-46 (1957), as is required for a dismissal under Rule 12(b)(6) — a requirement "to be applied with particular strictness when the plaintiff complains of a civil rights violation." Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991). Bearing in mind that "[t]he task of the court in ruling on a Rule 12(b)(6) motion 'is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof,'" Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998) (quoting Ryder Energy Distribution Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984)), Plaintiff's allegations are sufficient to survive a motion to dismiss his suit as against the County.
It follows that Plaintiff's allegations are sufficient to survive a motion to dismiss his suit as against Commissioner Pozzi himself. One circumstance in which personal liability of a supervisory official may exist (although not the only circumstance) is when "an official demonstrates . . . 'deliberate indifference' to the constitutional rights of inmates by failing to act on information indicating that unconstitutional practices are taking place."Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Therefore, the complaint's sufficiency as against the County, based on Commissioner Pozzi's alleged failure to act, leads to the conclusion that the complaint is also sufficient as against Commissioner Pozzi.
II. Transfer of an Action Pursuant to Rule 22 of the Rules for the Division of Business Among District Judges
A. Legal Standard
On motion of "the attorney for any other party [besides the plaintiff]," or sua sponte, a judge of the Southern District of New York may reassign a case from the White Plains courthouse to the Foley Square courthouses or vice versa "in the interest of justice or sound judicial administration." S.D.N.Y. Division of Business R. 22. The preface to the Rules for the Division of Business Among District Judges in the Southern District of New York, however, explicitly state that those Rules "are adopted for the internal management of the case load of the court and shall not be deemed to vest any rights in litigants or their attorneys." Local Rules of the United States District Courts for the Southern and Eastern Districts of New York, at 92. As a result, motions to reassign under Rule 22 are subject to a "broad discretionary standard." Ginsberg v. Valhalla Anesthesia Assocs., P.C., 171 F.R.D. 159, 160 (S.D.N.Y. 1997).
B. Analysis
Defendants contend "that this case should be transferred from the New York to the White Plains Courthouse in the interests of judicial economy." (Def. Trans. Req. at 3.) Because "[t]his case involves fourteen defendants, all of whom work in Westchester County", because the actions alleged in the complaint took place in that County, and because depositions in the 1999 action took place in Westchester, Defendants argue that "[i]t is difficult to conceive how this case belongs anywhere other than in the Westchester Courthouse of the Southern District." (Id.) Therefore, Defendants request a transfer pursuant to Rule 22 of the Rules for the Division of Business among District Judges.
As this Court has previously explained, however, the policy behind Rule 25 of the Rules for the Division of Business Among District Judges would be undermined if prisoner civil rights cases were transferred under Rule 22 simply because the claim arose in Westchester or one of the other "Northern Counties" (Dutchess, Orange, Putnam, Rockland, and Sullivan), and one or more parties resided there. Thrower v. Pozzi, 99 Civ. 5871 (GBD), 2002 U.S. Dist. LEXIS 1035 (S.D.N.Y. January 24, 2002), at *23-*25. Rule 25 instructs that "[c]ases from the prisoner petitions wheel . . . including prisoner civil rights cases, are assigned proportionately to all judges of this Court, whether sitting at White Plains or Foley Square." This deviation from the normal principle of Rule 21 of the Rules for the Division of Business, which states in essence that cases with a significant connection to the Northern Counties should be assigned to the White Plains Courthouse, is justified by the fact that "[t]he majority of prison facilities are located in the Northern Counties," and thus if prisoner civil rights cases were assigned in the normal manner "an overwhelming number of these cases would be assigned to the White Plains Courthouse." Thrower at *24. Transferring prisoner civil rights cases to White Plains because the location of the alleged abuses and the workplace of the alleged abusers is in one of the Northern Counties would undercut Rule 25 and lead to a significantly disproportionate allocation of those cases.Id.; Muhammad v. Catletti, 00 Civ. 2525 (JSR)(FM), 2000 U.S. Dist. LEXIS 15829 (S.D.N.Y. Oct. 31, 2000), at *8 ("Because the vast majority of prison facilities in this district are located in the northern counties, proportional assignment would be impossible if cases from the northern counties assigned to district judges in lower Manhattan were . . . reassigned every time the convenience of the parties and . . . witnesses . . . favor[ed] . . . such a transfer.").
Defendants argue that Plaintiff has made "inconsistent assertions" by accurately noting that this case should not be transferred because routine transfer of prisoner civil rights cases to White Plains would undermine Rule 25, and yet arguing that the PLRA's exhaustion requirement is inapplicable to the instant complaint. (Def. Rep. at 8 n. 4.) If "[P]laintiff[i]s a 'prisoner' for purposes of the Rules for the Division of Business," Defendants contend, then he must be a 'prisoner' for the purpose of the PLRA's exhaustion requirement; to take a contrary position is to assert that "[a]pparently, [P]laintiff is a different 'prisoner' for purposes of the PLRA." (Id.) This accusation of inconsistency lacks merit. For two distinct reasons, it is incorrect to suggest that any case which qualifies as a "prisoner civil rights case" under Rule 25 must necessarily qualify as an "action brought with respect to prison conditions . . . by a prisoner confined in any jail, prison, or other correctional facility," 42 U.S.C.S. § 1997e(a) (2004), and thus trigger the PLRA's exhaustion requirement.
First, the term "prisoner" is explicitly defined within the PLRA, so that where it is used within that statute it refers specifically to "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." 42 U.S.C.S. § 1997e(h) (2004); accord 28 U.S.C.S. § 1915(h) (2004) (identically worded definition). This PLRA definition obviously does not apply to the Rules for the Division of Business Among District Judges, for purposes of which the term "prisoner" must therefore be deemed to have its ordinary meaning. Some persons covered by that ordinary meaning of the term "prisoner", as one could argue that Plaintiff was at the time he filed the instant complaint, will not covered by the PLRA definition of the term.
Also, the different purposes served by the PLRA and Rule 25 make it entirely reasonable to interpret them as looking to plaintiff's status at different times. The PLRA, as discussed above, was intended to curtail frivolous litigation by prisoners who used legal action as a form of recreation. Therefore, and consistently with the text of the PLRA, whether an action is subject to the various requirements of the PLRA depends upon whether the plaintiff in the action was a confined "prisoner" at the time the complaint was filed. E.g., Berry v. Kerik, 366 F.3d 85, 87 (2d Cir. 2003); Harris v. Garner, 216 F.3d 970, 972-82 (5th Cir. 2000); Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999); Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998).
Rule 25, on the other hand, is designed to prevent the White Plains Courthouse from being deluged with a particular sort of case, and is an exception to the more general principle of Rule 21 that cases should be assigned to White Plains if they arose in the Northern Counties (and at least one of the parties resides there). In this context, it is sensible to interpret a "prisoner civil rights case" as including any case based upon alleged violations of the civil rights of a plaintiff who was a prisoner when the alleged violations occurred. The focus is on a type of claim that tends to arise in the Northern Counties because the majority of prisons are located there, so the question can reasonably be whether the claim to be assigned was of that type when it arose. There is thus nothing remarkable about the existence of a case that could be considered a "prisoner civil rights case" within the meaning of Rule 25, but that was not "brought . . . by a prisoner," 42 U.S.C.S § 1997e(a) (2004), within the meaning of the PLRA's exhaustion requirement.
Therefore, taking into account the policy of Rule 25 and the lack of any true inconsistency in Plaintiff's position, the Court in its "broad discretion", Ginsberg v. Valhalla Anesthesia Assocs., P.C., 171 F.R.D. 159, 160 (S.D.N.Y. 1997), declines to order this case transferred to the White Plains Courthouse.
IV. Conclusion
For the reasons stated above, both Defendants' Motion to Dismiss and Defendants' letter motion to transfer this case to White Plains are DENIED. As requested in Defendants' Notice of Motion, Defendants shall have twenty (20) days from the date of entry of this Opinion and Order to answer the Complaint.
SO ORDERED.