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dismissing the plaintiff's § 1983 claims against certain defendants whose names appeared only in the caption of the complaint and on the list of all defendants
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12 Civ. 7419 (ALC)(RLE)
07-25-2014
TYRON LOVICK, Plaintiff, v. COMMISSIONER SCHRIRO, ASSISTANT DEPUTY WARDEN BROWN, CAPTAIN CLIFTON, ASSISTANT DEPUTY WARDEN DUNBAR, CAPTAIN ITON, WARDEN NEWTON, DEPUTY WARDEN RAMOS, AND CAPTAIN SIMPSON, Defendants.
MEMORANDUM & ORDER ANDREW L. CARTER, JR., District Judge :
I. Introduction
Plaintiff Tyron Lovick, proceeding pro se, brings this action under 42 U.S.C. § 1983 ("§ 1983"), claiming Defendants Assistant Deputy Warden Brown, Captain Clifton, Assistant Deputy Warden Dunbar, Captain Iton, Warden Newton, Deputy Warden Ramos, Commissioner Schriro, and Captain Simpson denied him showers, visits, phone calls to his lawyer and family, visits to the infirmary and the law library, the ability to shave, toilet paper, and water. Plaintiff further alleges he was woken up in the middle of the night and unlawfully strip searched. Lastly, Plaintiff claims the x-ray machine through which he was taken several times a week resulted in the onset of severe headaches, mental health issues, sleep deprivation, and a depressed appetite. Defendants now move to dismiss the Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
II. Background
During various times between June and December of 2012, while incarcerated in the Otis Bantum Correctional Center ("OBCC") at Rikers Island prison, Plaintiff claims he was denied access to necessary activities and hygienic materials. Specifically, Plaintiff states he was not permitted to shower, make phone calls to lawyers and family members, visit the infirmary, access the law library, take part in recreation, receive or send mail, take his medication, and obtain items such as toilet paper, toothpaste, food, and water. (Am. Compl. § II.D; Pl.'s Dec. 18, 2013 Opp. 2.) According to Plaintiff, some or all of these deprivations were at the direction of Captain Clifton. (Am. Compl. § II.D.) Plaintiff also alleges he was subjected to sexual harassment through strip searches that were conducted in the middle of the night while Captain Iton was present. (Id.; Pl.'s Dec. 18, 2013 Opp. 1-3.)
Additionally, Plaintiff asserts inmates were beaten up while in handcuffs, and unnamed guards with gas masks brought shotguns, tear gas, and dogs into the housing area. (Am. Compl. § II.D; Pl.'s Dec. 18, 2013 Opp. 2.) Lastly, as a result of being taken through the "surpass" x-ray machine three to four times per week, Plaintiff claims his body has been damaged. (Am. Compl. § II.D; Pl.'s Dec. 18, 2013 Opp. 1.) He allegedly suffers from severe headaches, mental health issues, sleep deprivation, and a depressed appetite. (Am. Compl. § III; Pl.'s Dec. 18, 2013 Opp. 1.) He also claims he had surgery on the left side of his body resulting from the damage caused by the x-ray machine. (Am. Compl. § II.D.)
Due to these conditions, Plaintiff purportedly filed grievances in his housing area, "but nothing got done." (Id. §§ IV.E-F.) He opines that "the officers never turn[ed] it in." (Id. § IV.E.) He supposedly filed subsequent grievances and approached Captain Clifton about his concerns. (Id.) In response, Captain Clifton allegedly told Plaintiff, "I don't want to talk to you[,]" and he never received a formal response. (Id. §§ IV.E-F; Pl.'s Dec. 18, 2013 Opp. 2.) Without providing any details, Plaintiff indicates Captain Iton was also aware of his concerns. (Am. Compl. § IV.F.)
III. Discussion
Defendants argue the Amended Complaint should be dismissed pursuant to Rule 12(b)(6) for the following reasons: (1) Plaintiff failed to adequately allege the personal involvement of Defendants Brown, Dunbar, Newton, Ramos, Schriro, and Simpson; (2) Plaintiff failed to exhaust his administrative remedies in compliance with the Prison Litigation Reform Act ("PLRA"); (3) Plaintiff has not alleged his conditions of confinement violate the Eighth Amendment; and (4) Plaintiff has not alleged the strip searches violate the Fourteenth Amendment. In evaluating the sufficiency of the allegations to survive Defendants' Motion, the Court considers all facts set forth in the Amended Complaint and Plaintiff's opposition papers. See Rosado v. Herard, No. 12-cv-8943 (PGG)(FM), 2013 WL 6170631, at *3 (S.D.N.Y. Nov. 25, 2013) ("In evaluating the legal sufficiency of a pro se plaintiff's claims, a court may rely on the plaintiff's opposition papers.") A. Standard of Review
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows for dismissal if a party fails "to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). When deciding a motion to dismiss, the Court must accept as true all well-pled facts alleged in the complaint and must draw all reasonable inferences in plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). Claims should be dismissed when a plaintiff has not pled enough facts that "plausibly give rise to an entitlement for relief." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678. If the non-moving party has "not nudged [its] claims across the line from conceivable to plausible, [its] complaint must be dismissed." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "[T]o state a civil rights claim under § 1983, a complaint must contain specific allegations of fact which indicate a deprivation of constitutional rights; allegations which are nothing more than broad, simple, and conclusory statements are insufficient to state a claim under § 1983." Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987).
Submissions of pro se plaintiffs should be construed liberally by courts and interpreted to assert the strongest arguments they suggest. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006); Ortiz v. McBride, 323 F.3d 191, 194 (2d Cir. 2003). "A pro se complaint should not be dismissed unless 'it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim[s] which would entitle [them] to relief.'" Weixel v. Bd. of Educ. of City of N.Y., 287 F.3d 138, 145-46 (2d Cir. 2002) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The Second Circuit has found these principles especially true where a pro se complaint alleges civil rights violations. Id. B. Section 1983 Claims against Brown , Dunbar , Newton , Ramos , Schriro , and Simpson
"To state a claim under Section 1983, a plaintiff must allege facts indicating that some official action has caused the plaintiff to be deprived of his or her constitutional rights . . . ." Colombo v. O'Connell, 310 F.3d 115, 117 (2d Cir. 2002). "A defendant's conduct must therefore be a proximate cause of the claimed violation in order to find that the individual defendant deprived the plaintiff of his rights." Ross v. Westchester County Jail, No. 10-cv-3937 (DLC), 2012 WL 86467, at *9 (S.D.N.Y. Jan. 11, 2012) (citing Martinez v. California, 444 U.S. 277, 285 (1980)). "'It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006) (citation omitted); see also Iqbal, 556 U.S. at 676 ("[A] plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.").
Plaintiff does not claim anywhere in the Amended Complaint or in his opposition papers that Defendants Brown, Dunbar, Newton, Ramos, Schriro, and Simpson had any personal involvement in the conditions and events alleged to have violated his constitutional rights. Indeed, the only place their names appear is in the caption and in the section of the Amended Complaint where Plaintiff is asked to list all Defendants. (Am. Compl. § I.B.) Since there are no allegations whatsoever indicating Defendants Brown, Dunbar, Newton, Ramos, Schriro, and Simpson were personally involved in the purported violations, Plaintiff's § 1983 claims against them are dismissed. See Barnes v. Pozzi, No. 10-cv-2554 (JGK), 2012 WL 3155073, at *8 (S.D.N.Y. Aug. 3, 2012) (dismissing two defendants who were not mentioned in the complaint for lack of personal involvement); Myers v. City of N.Y., No. 11-cv-8525 (PAE), 2012 WL 3776707, at *3 (S.D.N.Y. Aug. 29, 2012) (dismissing plaintiff's § 1983 claims against two defendants that were not personally involved in the incidents giving rise to the suit). C. Exhaustion of Administrative Remedies under the PLRA
The PLRA "requires an inmate to exhaust all available administrative remedies before bringing a § 1983 action." Myers, 2012 WL 3776707, at *3 (citing 42 U.S.C. § 1997e(a)). "It is well established that to exhaust . . . 'a prisoner must grieve his complaint about prison conditions up through the highest level of administrative review' before filing suit." McCoy v. Goord, 255 F. Supp. 2d 233, 246 (S.D.N.Y. 2003) (citation omitted). "In addition, the exhaustion must be '[p]roper' — that is, 'compl[y] with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.'" Key v. Toussaint, 660 F. Supp. 2d 518, 523 (S.D.N.Y. 2009) (quoting Woodford v. Ngo, 548 U.S. 81, 90-91 (2006)).
The failure to exhaust administrative remedies is an affirmative defense that must be raised by Defendants. Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004). Since "[t]he PLRA does not require the exhaustion of all administrative remedies, but only those that are 'available' to the inmate[,]" Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir. 2004), the Second Circuit has recognized certain exceptions to the exhaustion requirement. These exceptions apply when:
(1) administrative remedies are not available to the prisoner; (2) defendants have either waived the defense of failure to exhaust or acted in such as [sic] way as to estop them from raising the defense; or (3) special circumstances, such as a reasonable misunderstanding of the grievance procedures, justify the prisoner's failure to comply with the exhaustion requirement.Ruggiero v. County of Orange, 467 F.3d 170, 175 (2d Cir. 2006) (citing Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004)). Thus, "[i]f nonexhaustion is clear from the face of the complaint[,]" and none of the exceptions outlined by the Second Circuit are germane, "a motion to dismiss pursuant to Rule 12(b)(6) for failure to exhaust should be granted." McCoy, 255 F. Supp. 2d at 251.
It is unclear what effect the Supreme Court's decision in Woodford v. Ngo has on Hemphill and its progeny, which provide a series of criteria for when exhaustion might be excused. See Amador v. Andrews, 655 F.3d 89, 102 (2d Cir. 2011) ("Subsequent decisions have questioned the continued viability of [the Hemphill] framework following the Supreme Court's decision in Woodford v. Ngo, 548 U.S. 81, 126 S. Ct. 2378, 165 L.Ed.2d 368 (2006)."). Nonetheless, without specific direction to the contrary, district courts in this Circuit continue to apply the principles of Hemphill in determining whether failure to exhaust should lead to dismissal of a complaint. See, e.g., Winston v. Woodward, 05-cv-3385 (RJS), 2008 WL 2263191, at *6 (S.D.N.Y. May 30, 2008); Stevens v. City of N.Y., No. 12-cv-1918 (JPO)(JLC), 2012 WL 4948051, at *4 (S.D.N.Y. Oct. 11, 2012); Randle v. Alexander, 960 F. Supp. 2d 457, 484 (S.D.N.Y. 2013).
The administrative remedies Plaintiff is required to exhaust are set forth in the Department of Correction's ("DOC") five-step Inmate Grievance Resolution Program (the "IGRP"). See Myers, 2012 WL 3776707, at *4 ("Because OBCC, where Myers is confined, is a DOC facility, his administrative remedies are covered by the DOC's five-step Inmate Grievance Resolution Program."). The IGRP directs inmates to:
The Court takes judicial notice of the procedures set forth in the IGRP, as is customary in this Circuit. See Myers, 2012 WL 3776707, at *4 n.6 (collecting cases). A document outlining the IGRP is attached to the Declaration of Rosemari Yam at Exhibit B. --------
(1) file an informal complaint with the Inmate Grievance Resolution Committee ("IGRC"); (2) in the event that informal resolution is not reached within five days, request a formal hearing before the IGRC; (3) appeal any unfavorable decision by the IGRC to the Commanding Officer; (4) appeal any unfavorable decision by the Commanding Officer to the Central Office Review Committee; and (5) appeal any unfavorable decision from the Central Office Review Committee to the New York City Board of Correction.Id. "An inmate's administrative remedies are not exhausted until he proceeds through all five levels of the IGRP." Houston v. Horn, No. 09-cv-801 (DLC), 2010 WL 1948612, at *6 (S.D.N.Y. May 13, 2010).
In the Amended Complaint, Plaintiff states he filed a grievance regarding "everything I stated in this Complaint" "[i]n my housing area but nothing got done." (Am. Compl. § IV.E.) Indeed, Plaintiff believes "the officers never turn[ed] it in." (Id.) When asked what steps he took to appeal the decision, Plaintiff notes, "I grieve again. I approach Captain Clifton. She said, 'I don't want to talk to you.' So that's when I reach out to you [the Court]." (Id.) In another section of the Amended Complaint, Plaintiff reiterates, "I file a grievance since June. Never got no response until the United States District Court." (Id. § IV.F.) "Captain Clifton . . . ignored me, said she don't want to talk. I asked her, 'Why we suffering for no reason on 22nd Thanksgiving Day.' Captain Iton also." (Id.) Plaintiff maintains, "Every time I complain they say write [a] grievance but nothing never get [sic] done[.]" (Id. § IV.G.) Plaintiff does not list specific dates on which he complained or filed a grievance, but he does indicate his first complaint was made in June of 2012. (Id. at 8.) Lastly, Plaintiff adds, "I have filed grievances concerning being denied food November 20-24, 2012 and December 24-25, 2012, as well as being denied medication December 8-9, 2012, but have not received any response from said grievances." (Pl.'s Dec. 18, 2013 Opp. 3.)
Based on the foregoing, it is clear from the record that Plaintiff did not exhaust his administrative remedies under the IGRP. In particular, Plaintiff acknowledges that after he attempted to file a grievance in his housing unit and received no response, he "reach[ed] out" to the Court. The only other action Plaintiff alleges to have taken is notifying Captain Clifton and Captain Iton of his complaints verbally. This plainly does not constitute complete or proper exhaustion in accordance with the steps set forth in the IGRP.
The only remaining question is whether any of the exceptions to the exhaustion requirement apply to this case. Bearing in mind that on a Rule 12(b)(6) Motion the Court must consider all facts in the light most favorable to Plaintiff, it cannot be determined at this time whether Defendants should be estopped from raising the administrative exhaustion defense or whether this case may involve special circumstances that justify waiving exhaustion. In fact, Plaintiff alleges that he filed several grievances, however, he believes they were never "turn[ed] in" by prison officials. When he complained, he was told to file another grievance. Although Plaintiff's allegations are sparse, it is plausible based on the facts in the Amended Complaint and Plaintiff's opposition papers that one of the Hemphill exceptions could be warranted here. See Collins v. Goord, 438 F. Supp. 2d 399, 414 (S.D.N.Y. 2006) (denying summary judgment where there was a genuine issue of fact as to whether plaintiff was permitted to file a formal grievance); Rodriguez v. Hahn, No. 99-cv-11663 (VM), 2000 WL 1738424, at *2 (S.D.N.Y. Nov. 22, 2000) (denying a motion to dismiss on exhaustion grounds where the plaintiff alleged, inter alia, that corrections officers never filed his grievances).
In situations such as this, courts in this District have reasoned that "defendant's motion to dismiss should be converted . . . to one for summary judgment limited to the narrow issue of exhaustion and the relatively straightforward questions about the plaintiff's efforts to exhaust, whether remedies were available, or whether exhaustion might be, in very limited circumstances, excused." McCoy, 255 F. Supp. 2d at 251. "Courts have applied this modified procedure to the specific issue of whether the Hemphill exceptions defeat a motion to dismiss for lack of administrative exhaustion." Stevens, 2012 WL 4948051, at *6 (collecting cases). As the Stevens court points out, when converting a Motion to Dismiss into a Motion for Summary Judgment under Fed. R. Civ. P. 12(d), notice to the parties is mandated, particularly when a pro se litigant is involved. Id. at *7 (citing Beacon Enters., Inc. v. Menzies, 715 F.2d 757, 767 (2d Cir. 1983)).
Accordingly, the Court will permit the parties to engage in limited discovery confined solely to the issue of administrative exhaustion. Discovery shall be concluded by September 12, 2014. Upon the completion of discovery, if Defendants choose to file a Motion for Summary Judgment on the issue of administrative exhaustion only, they shall do so by October 10, 2014. Any opposition by Plaintiff shall be filed by December 1, 2014. Defendants' reply, if any, shall be filed by December 19, 2014.
Once the Court has ruled on the issue of exhaustion, if this case is still active, the Court will allow Defendants to seek leave to raise their remaining Rule 12(b)(6) arguments.
IV. Conclusion
For the foregoing reasons, Plaintiff's § 1983 claims against Defendants Brown, Dunbar, Newton, Ramos, Schriro, and Simpson are DISMISSED WITH PREJUDICE. With respect to the remaining claims against Captain Clifton and Captain Iton, Defendants' Motion to Dismiss is converted into a Motion for Summary Judgment limited solely to the issue of exhaustion under the PLRA. The Motion for Summary Judgment shall be governed by the limited discovery and briefing schedule set forth above.
The Clerk of Court is respectfully directed to terminate the Motion at Dkt. No. 21 and to terminate Defendants Brown, Dunbar, Newton, Ramos, Schriro, and Simpson from this case.
SO ORDERED.
Dated: New York, New York
July 25 , 2014
/s/ _________
ANDREW L. CARTER, JR.
United States District Judge