Opinion
Civil Action No. 9:01-CV-463 (LEK/DEP)
December 19, 2002
Renard Law, pro se, Marcy, NY, for Plaintiff
Hon. Eliot Spitzer, Attorney General of the States of New York, Albany, New York, for Defendants
Jeanette Rodriguez-Morick, Esq., Assistant Attorney General, of Counsel
REPORT AND RECOMMENDATION
In a lengthy and multi-faceted amended complaint plaintiff Renard Law, a New York State prison inmate, asserts in this action claims stemming from a broad range of events and prison conditions experienced during his confinement at four separate facilities operated by the New York State Department of Correctional Services ("DOCS"). Plaintiff's complaint names as defendants the DOCS Commissioner as well as thirty-four other agency workers employed in various positions. In his amended complaint, plaintiff seeks injunctive relief as well as compensatory and punitive damages in varying, though significant, amounts.
In response to plaintiffs complaint defendants have filed a motion seeking dismissal of plaintiff's claims. In their motion defendants urge rejection of plaintiffs claims against the DOCS, based upon the Eleventh Amendment, and additionally attempt to challenge this court's subject matter jurisdiction, asserting that plaintiff's complaint represents an amalgamation of administratively exhausted and unexhausted claims, inviting the court to dismiss plaintiffs complaint in its entirety on this basis.
It is unclear in the first instance whether plaintiff has named the DOCS as a defendant in this case, and the court's docket sheet reflects that that agency has not been served. Nonetheless, for the sake of clarification I recommend that to the extent plaintiff's complaint could be construed as naming the DOCS as a defendant, defendants' motion to dismiss be granted as to the agency, with prejudice. Additionally, because by his own admission plaintiff has failed to exhaust available administrative procedures with regard to a portion of his claims in this case, I recommend that his entire complaint be dismissed, without prejudice.
I. BACKGROUND
Plaintiffs claims, which are many in number and diverse in their nature, will not be set forth in detail, but instead will be summarized only to the extent necessary to provide a backdrop for analysis of defendants' dismissal motion. Plaintiffs claims relate to occurrences during the time of his confinement at the Adirondack Correctional Facility, the Fishkill Correctional Facility, the Oneida Correctional Facility and the Marcy Correctional Facility, although the relevant events took place predominantly at Adirondack. Plaintiffs complaint focuses to a large extent upon his dissatisfaction with medical care received, causing him severe pain stemming primarily from a longstanding lumbar disc condition. See, e.g., Amended Complaint (Dkt. No. 21) ¶¶ 27, 28, 30, 58, 66, 70, 71, 79, 97. Plaintiff also alleges that while at Adirondack defendant G. Panescu provided him with inadequate treatment for an infected tooth abscess. Id. ¶¶ 63-64.
In addition to the medical claims, plaintiff also complains of an allegedly improper denial of his request to participate in a legal research program maintained at one of the facilities (Amended Complaint (Dkt. No. 21) ¶ 29)); unlawful interference with his access to the courts (id. ¶ 26); improper and unlawful segregation, including in the prison infirmary (id. ¶ 81); the filing of false misbehavior reports against him (id. ¶ 74); retaliation against him in various ways for filing of grievances (id. ¶ 44); and the theft of his typewriter (id. ¶ 33). The time period associated with the various occurrences giving rise to plaintiff's complaint is said to span from November of 1999 through September of 2001.
II. PROCEDURAL HISTORY
Plaintiff initiated this action by complaint submitted on April 2, 2001, and later filed on May 7, 2001. Dkt. No. 9. Accompanying plaintiff's complaint were documents construed by the court as an application seeking interim injunctive relief. Dkt. Nos. 1, 2.
Also submitted by the plaintiff at the onset was a motion for appointment of counsel. Dkt. No. 5. That motion, as well as two later applications seeking similar relief, have been denied. See Dkt. Nos. 5, 8, 16, 17, 69, 72.
On May 16, 2001 an order was issued in this action by District Judge Lawrence E. Kahn addressing certain preliminary matters. Dkt. No. 11. In that order, inter alia, District Judge Kahn denied plaintiffs application for a preliminary injunction, and directed plaintiff to file an amended complaint which complied with the requirements of Rules 8 and 10 of the Federal Rules of Civil Procedure. Id. An amended complaint subsequently received by the court on June 11, 2001 in response to that order (Dkt. No. 14) was ordered stricken by Judge Kahn on July 6, 2001. Dkt. No. 15.
On October 5, 2001 an amended complaint found by the court to be compliant with the prior orders of Judge Kahn (see Dkt. No. 15) was filed. Dkt. No. 21. Named in plaintiff's amended complaint are the following defendants, all of whom, with the exception of T. Smith, have now been served:Name Position
H. Bergamini Physician at Adirondack J. Rogers Physician at Adirondack A. Bombard Corrections Worker at Adirondack G. Boynton Corrections Worker at Adirondack A. Coleman Corrections Worker at Adirondack G. Dawson Corrections Worker at Adirondack R. Foster Corrections Worker at Adirondack S. Hutchins Corrections Worker at Adirondack J. Jones Corrections Worker at Adirondack M. LeClare Corrections Worker at Adirondack R. Sheasby Corrections Worker at Adirondack T. Smith Corrections Worker at Adirondack C. Sorenson Corrections Worker at Adirondack M. Staves Corrections Worker at Adirondack R. Warner Corrections Worker at Adirondack D. Bashaw Deputy Superintendent of Security at Adirondack W. Burke Deputy Superintendent of Programs at Adirondack A. Cole Deputy Superintendent of Administrative Service at Fishkill I. Ellen Medical Care Provider at Fishkill J. Sohng Medical Care Provider at Fishkill R. Fisher Deputy Superintendent of Administrative Service at Marcy L. Goidel Supervisor of Inmates Grievance Program at Fishkill G. Goord Commissioner of the DOCS B. Granish Inmate Records Coordinator at Adirondack D. Hachey Supervisor of Inmate Grievance Program at Adirondack L. Hanson Nurse at Adirondack P. Pelletteri Nurse at Adirondack P. Roscoe Nurse at Adirondack M. Law Nurse Administrator at Adirondack G. Mara Physician at Oneida G. McGuane Superintendent of Adirondack G. Panescu Dentist at Adirondack R. Potter Deputy Superintendent of Administrative Services at Adirondack T. Sanders Superintendent at Adirondack K. Vadlamudi Physician at Marcy In lieu of answering plaintiffs complaint, on July 3, 2002 the defendants instead filed a motion seeking its dismissal pursuant to Rules 12(b)(1) (6) of the Federal Rules of Civil Procedure. Dkt. Nos. 76-78. In their motion, defendants have argued that plaintiff's claims against the DOCS are precluded by virtue of the Eleventh Amendment, and because neither the State nor any of its agencies are persons within the purview of 42 U.S.C. § 1983. Defendants also argue that some, though admittedly not all, or even a majority, of plaintiffs claims are unexhausted, and have invited the court to invoke a "total exhaustion" rule and thus dismiss plaintiffs complaint in its entirety based upon the inclusion of those unexhausted claims.A response on behalf of plaintiff to defendants' dismissal motion was received by the court on October 18, 2002. Dkt. No. 83. In his response plaintiff has acknowledged that some of his claims were not exhausted through the formal grievance process, arguing that those failures to exhaust are partly attributable to actions on the part of the defendants and others in precluding his efforts to file grievances, and on this basis requesting that he be excused from the exhaustion requirement.
Defendants' motion, which is now ripe for determination, has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See also Fed.R.Civ.P. 72(b).
III. DISCUSSION
A. Rule 12(b)(6) Standard
Defendants' motion is brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that plaintiff's complaint is legally deficient as a matter of law., A court may not dismiss an action pursuant to Rule 12(b)(6) 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." Cohen v. Koenig, 25 F.3d 1168, 1171-72 (2d Cir. 1994) (citing, inter alia, Conley v. Gibson, 355 U.S. 41, 45-46, 78S.Ct. 99, 102 (1957)). In deciding a 12(b)(6) motion, the court must accept the material facts alleged in the complaint as true. Id. (citing Cooper v. Pate, 378 U.S. 546, 546, 84 S.Ct. 1733, 1733 (1964) (per curiam)).
That rule provides, in pertinent part, that
Every defense, in law or fact, to a claim for relief in any pleading . . . shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may have the option of the pleader be made by motion: . . . (6) failure to state a claim upon which relief can be granted, . . . .
Fed.R.Civ.P. 12(b)(6).
Plaintiff's motion is also bottomed upon Rule 12(b)(1) of the Federal Rules of Civil Procedure based upon an asserted lack of subject matter jurisdiction. Although courts are admittedly split on this issue and the Second Circuit has not explicitly addressed it, the general trend in other circuits, embraced by many courts in this circuit, is that failure to comply with the PLRA's exhaustion requirement is an affirmative defense, and thus not a jurisdictional concern. Hallett v. New York State DOCS, 109 F. Supp.2d 190, 196 (S.D.N.Y. 2000) (citingJenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir. 1999)); Santiago v. Meinsen, 89 F. Supp.2d 435, 441 n. 5 (S.D.N.Y. 2000) (citation omitted); Howard v. Goord, No. 98-CV-7471, 1999 WL 1288679, at *2 (E.D.N.Y. Dec. 28, 1999) (also citing Jenkins); Howard v. Headly. 72 F. Supp.2d 118, 122-23 n. 1-2 (E.D.N.Y. 1999) (citing cases from this and other circuits); see also Davis v. New York, ___ F.3d ___, No. 01-0118, 2002 WL 31780920, at *7 (2d Cir. Dec. 13, 2002) (noting defendants' failure to raise potential failure to exhaust administrative remedies argument, and remanding for the district court to consider whether Davis properly exhausted his administrative remedies or whether the defendants waived compliance with the exhaustion requirement by failing to raise it).
When determining whether a complaint states a cause of action, a court should afford great liberality to pro se litigants. Platsky v. Central Intelligence Agency, 953 F.2d 26, 28 (2d Cir. 1991) (citation omitted). In fact, the Second Circuit has held that a court should not dismiss without granting leave to amend at least once if there is any indication that a valid claim might be stated. Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991); see also Fed.R.Civ.P. 15(a) (leave to amend "shall be freely given when justice so requires").
B. Plaintiff's Claims Against The DOCS
Interpreting plaintiffs complaint as asserting claims against the DOCS, defendants seek dismissal as against that agency. Defendants take this step as an obvious cautionary measure given the liberality with which pro se plaintiffs' complaints must be construed and in light of the fact that while the DOCS is not named as a defendant in its body, the caption of plaintiffs complaint does reflect the agency as one of the listed defendants. Defendants argue that the DOCS, as an arm of the State, is not properly. sued under 42 U.S.C. § 1983.
It is well-established that the state is not a "person" for purposes of civil rights suits under 42 U.S.C. § 1983, inasmuch as it is protected by Eleventh Amendment immunity. Will v. Michigan Dep't of State Police, 491 U.S. 58, 64, 109 S.Ct. 2304, 2308 (1989). This immunity extends to agencies of the state, such as the DOCS, as well. Davis, 2002 WL 31780920, at *7 (citations omitted); see also Will, 491 U.S. at 70, 109 S.Ct. at 2312; Alabama v. Pugh, 438 U.S. 781, 781-82, 98 S.Ct. 3057, 3057-58 (1978)
Because the DOCS, as an agency of the State, is exempt from suit under section 1983, I recommend that this aspect of defendants' motion be granted.
C. Exhaustion of Remedies
The primary thrust of defendants' dismissal motion stems from plaintiffs failure to exhaust administrative remedies with respect to some of his claims. Both defendants and plaintiff have submitted exhibits in addition to and in support of their arguments, including, inter alia, an affidavit from Thomas G. Eagen, Director of the DOCS Inmate Grievance Program ("IGP") (Dkt. No. 77) submitted by defendants, and various grievance forms and other related documents exchanged with regard to those grievances (Dkt. No. 83) submitted by plaintiff.
Due to the procedural posture of the case — review of the sufficiency of the plaintiffs complaint in the face of a motion to dismiss for failure to state a claim under Rule 12(b)(6) — I am constrained to limit my analysis to the complaint, and precluded from considering the exhibits submitted at this juncture, absent conversion of defendants' motion to one for summary judgment, giving notice to the parties of such conversion and providing an opportunity to make further evidentiary submissions. See Valentine v. Newton, No. 9:00-CV-1369, 2002 WL 31309181, at *1 (N.D.N.Y. Aug. 15, 2002) (Sharpe, M.J.) (Eagen affidavit inappropriate at motion to dismiss stage); Gonzalez v. Officer in Charge of Barber Shop on Duty on May 13, 1999, No. 99 Civ. 3455, 2000 WL 274184, at *3 (S.D.N.Y. Mar. 13, 2000) (when pleadings and opposition papers do not establish failure to exhaust, and assessment would involve matters outside pleadings, 12(b)(6) dismissal inappropriate); Howard v. Goord, No. 98-CV-7471, 1999 WL 1288679, at *3 (E.D.N.Y. Dec. 28, 1999) (citations omitted) (if, in assessing affirmative defense raised in motion to dismiss before trial, court must consider matters outside of the complaint, court must convert motion to dismiss to one for summary judgment). This I decline to do, as defendants' motion can otherwise be resolved based on the amended complaint and the parties's arguments, without resort to use of the exhibits. Woods v. Goord, No. 01 CIV. 3255, 2002 WL 731691, at n. 2 (S.D.N.Y. Apr. 23, 2002) (citations omitted) (appropriate to consider pro se plaintiff's opposition papers in conjunction with complaint when analyzing motion to dismiss); see also, e.g., Valentine, 2002 WL 31309181, at *1 (resolving motion to dismiss without considering affidavits).
In his opposition to defendants' motion, plaintiff argues for various reasons that some of his claims have been sufficiently exhausted. For instance, plaintiff challenges defendants' assertion that he has not filed a grievance concerning the head injury sustained after collapsing in the shower, maintaining that a timely grievance was filed on April 24, 2001 concerning that matter. Plaintiff's Reply (Dkt. No. 83) ¶ 6. Plaintiff also maintains that the typewriter theft was the subject of exhaustion of remedies, citing, among other things, his written claim (inmate claim no. 230-0045-00) on July 19, 2000 concerning that matter.Id. ¶ 8. Finally, plaintiff also asserts, although without providing specifics, that his efforts to file grievances have been thwarted by defendants (id. ¶¶ 9) and points out that his staff misconduct grievance regarding interference with earlier efforts to file grievances was made and exhausted.
Specifically, plaintiff's amended complaint alleges in broad and conclusory terms that he
used the prisoner grievance procedure in the institutions to try and resolve his problems on multiple Occassions [sic]. However, plaintiff did not get an opportunity to present the facts relating to his complaints because of unfair and unconstitutional practices employed in the investigative process by staff. Nonetheless, all remedies are exhausted.
Amended Complaint (Dkt. No. 21) ¶ 24. Plaintiff's allegations concerning the alleged efforts by prison personnel to thwart his pursuit of the grievance process, however, are unavailing; even when a plaintiff alleges — as Law does here — that his efforts to file a grievance were impeded by lower level corrections staff, the regulations provide a specific procedure for addressing such instances. Nelson v. Rodas, No. 01-CIV-7887, 2002 WL 31075804, at *2-*3 (S.D.N.Y. Sept. 17, 2002) (citing 7 N.Y.C.R.R. § 701); Byas v. State, 99 CIV. 1673, 2002 WL 1586963, at *2-*3 (S.D.N.Y. July 17, 2002) (same). Moreover, the fact that Law has successfully prosecuted several grievances to completion demonstrates that he is knowledgeable as to the correct procedures to follow.
While ordinarily the exhaustion issue is not susceptible to resolution at such an early stage and on an undeveloped record, the issue can be decided at this juncture in this instance. Although plaintiff asserts that he should be excused from the exhaustion requirement in connection with certain of his claims, in his opposition papers plaintiff himself concedes that he did not exhaust two of his claims. Specifically, Law acknowledges that while the issue of attendance at a legal research program was raised in a letter dated April 28, 2000 to Adirondack Superintendent McGuane, he did not file a grievance concerning it. Plaintiff's Reply (Dkt. No. 83) ¶ 5. Plaintiff also acknowledges that no specific grievance was filed concerning defendant Ellen's actions which resulted in the denial of medical treatment. Plaintiff's Reply (Dkt. No. 83) ¶ 7.
To the extent that plaintiff may be arguing that his letter to Superintendent McGuane satisfied his PLRA exhaustion obligation, there is no support for this authority under these circumstances; it is well established that by writing complaint letters to prison officials, including a facility superintendent or even the DOCS Commissioner, an inmate will not satisfy his or her PLRA exhaustion requirement. Nelson, 2002 WL 31075804, at *3; Byas, 2002 WL 1586963, at *2.
Although plaintiff points out that grievance FS-21718-01 complained of the denial of adequate medical care in broad terms, the argument that plaintiff's medical treatment grievance, which was filed in May of 2001, included the Ellen medical hold claim is diminished by the fact that the grievance was initiated some two months prior to the incident. Amended Complaint (Dkt. No. 21) ¶ 97.
Since it therefore appears by plaintiff's own admission that some of plaintiffs claims in this action are unexhausted, and are therefore premature and should result in dismissal (albeit without prejudice and subject to his right to raise those claims through the available grievance process), the question remains as to whether the fact that plaintiff's claims in this case are mixed — in the sense that one is exhausted, while at least two, if not more, are not — should result in dismissal of plaintiff's complaint in its entirety. In their motion defendants argue that these circumstances are fatal to plaintiffs complaint in its entirety, citing Graves v. Norris, 218 F.3d 884 (8th Cir. 2000) and Rivera v. Whitman, 161 F. Supp.2d 337 (D.N.J. 2001), and therefore ask the court to dismiss all of plaintiff's claims, exhausted and unexhausted alike, without prejudice. See Defendants' Memorandum (Dkt. No. 78) at 5-6.
Although the defendants fail to note as much in their memorandum (see id.), the question of whether the joinder of exhausted and unexhausted claims in a single prisoner complaint requires dismissal of all claims, or instead merely those for which no grievance has been filed, is one on which the courts are split, with no definitive guidance yet provided by the Second Circuit. See Nelson, 2002 WL 31075804, at *5 (collecting cases); Rivera, 161 F. Supp.2d at 339 (same). One circuit court which has squarely addressed the issue has done so without significant analysis.Graves v. Norris, 218 F.3d 884, 885-86 (8th Cir. 2000) (joinder of exhausted and non-exhausted claims requires dismissal of all claims) (per curiam). Other courts that have considered the issue have reached contradictory results. Compare Saunders v. Goord, No. 98 CIV. 8501, 2002 WL 1751341, at *3 (S.D.N.Y. July 29, 2002) (joinder of exhausted and non-exhausted claims requires dismissal of all claims); Rivera, 161 F. Supp.2d at 343 (same) with Espinal v. Coughlin, No. 98 CIV 2579, 2002 WL 10450, at *1 (S.D.N.Y. Jan. 3, 2002) (dismissal of entire complaint not required as a result of inclusion of unexhausted claims) Johnson v. True, 125 F. Supp.2d 186, 188-89 (W.D. Va. 2000) (same).
Having reviewed the matter carefully I find that absent definitive guidance from the Second Circuit, the reasoning articulated in Rivera, espousing a "total exhaustion rule", is more persuasive based upon the plain language of the PLRA as well as the legislative history and policy considerations supporting it. Accordingly, in light of plaintiff's acknowledgment that at least some of his claims are unexhausted, I recommend dismissal of his complaint in its entirety, without prejudice to his right to file a new action asserting claims which have been fully and properly exhausted as required by the PLRA.
IV. SUMMARY AND RECOMMENDATION
To the extent that plaintiff's complaint can be construed as asserting a claim against the DOCS, his claims against that agency are subject to dismissal in light of the fact that as an arm of the State, that agency is not a person subject to suit under 42 U.S.C. § 1983. Turning to the primary thrust of defendants' dismissal motion, because by his own admission plaintiff has included in his complaint at least one claim, and in all likelihood two, that have not been properly exhausted, I recommend dismissal of that complaint in its entirety for failure to satisfy the PLRA's administrative exhaustion requirement, without prejudice to plaintiffs right to commence a new action in which he asserts only fully and properly exhausted claims.
Based upon the foregoing, it is hereby
RECOMMENDED, that defendants' motion to dismiss (Dkt. No. 76-1) be GRANTED, and that plaintiff's complaint in this action be dismissed in its entirety, without prejudice.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court within TEN days. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this Report and Recommendation upon the parties by regular mail.