Opinion
9:99-CV-2127 (FJS)(GLS)[LEAD CASE], 9:99-CV-2128 [MEMBER CASE], 9:99-CV-2129 [MEMBER CASE]
June 4, 2003
RAYMOND DANIEL MEHLENBACHER, Plaintiff, Pro Se, Green Haven Correctional Facility, FOR THE PLAINTIFF.
HON. ELIOT SPITZER KRISTA A. ZINSER, ESQ., Attorney General of the State, Asst. Attorney General of New York Department of Law, New York, FOR THE DEFENDANTS.
REPORT-RECOMMENDATION
I. INTRODUCTION
This matter was referred to the undersigned for Report-Recommendation by the Honorable Frederick J. Scullin, Jr., Chief United States District Judge, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rules N.D.N.Y. 72.3(c). Plaintiff, pro se, Raymond Mehlenbacher claims that the defendants violated his civil rights when they failed to provide adequate medical care, assaulted him without cause, tampered with his food and assigned him to the top bunk. Before the court is the defendants' converted motion for summary judgment pursuant to Fed.R.Civ.P. 56. See Dkt. Nos. 37 and 50. Mehlenbacher has failed to respond. For the following reasons, this court recommends that summary judgment be granted and the case be dismissed without prejudice.
II. PROCEDURAL HISTORY
Mehlenbacher filed the present actions on December 8, 1999. By Order filed March 7, 2000, this court consolidated his three actions and directed service of the complaints. Dkt. No. 6. On March 12, 2001, the defendants filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6). Dkt. No. 37. After this court issued a January 18, 2002, order informing Mehlenbacher of his obligation to respond (Dkt. No. 45), he failed to do so.
Case number 99-CV-2127 ("Mehlenbacher I"), 99-CV-2128 ("Mehlenbacher II") and 99-CV-2129 ("Mehlenbacher III").
On June 13, 2002, this court issued an Order converting the defendants' motion to dismiss to a motion for summary judgment and granting each party an opportunity to submit additional material in support of the motion. Dkt. No. 50. Mehlenbacher was specifically ordered to address the allegation by the defendants that he had failed to exhaust all of his administrative remedies. Dkt. No. 50. He was further informed that his failure to respond could result in the court granting the motion for summary judgment. Dkt. No. 50. On July 15, 2002, the defendants submitted additional materials. Dkt. Nos. 51-53. However, despite the court's warnings, Mehlenbacher again failed to respond.
III. DISCUSSION
A. Legal Standard
Summary judgment may be granted when the moving party carries its burden of showing the absence of a genuine issue of material fact. Fed.R.Civ.P. 56; Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990) (citations omitted). "Ambiguities or inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the summary judgment motion." Id. However, when the moving party has met its burden, the nonmoving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); see also, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). At that point, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Id.
"The fact that there has been no response to a summary judgment motion does not, of course, mean that the motion is to be granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Even in the absence of a response, defendants are entitled to summary judgment only if the material facts demonstrate their entitlement to judgment as a matter of law. Id.; Fed.R.Civ.P. 56(c). Since Mehlenbacher has failed to respond to the defendants' statements of material fact, the facts as set forth in the defendants' Rule 7.1 Statement (Dkt. No. 51) and affidavit (Dkt. No. 52) are accepted as true. Adirondack Cycle Marine, Inc. v. American Honda Motor Co., Inc., No. 00-CV-1619, 2002 WL 449757, at *1 (N.D.N.Y. Mar. 18, 2002) (McAvoy, J.) (citing Lopez v. Reynolds, 998 F. Supp. 252, 256 (W.D.N.Y. 1997)).
B. Mehlenbacher's Allegations
Mehlenbacher alleges that while he was incarcerated at the Bare Hill Correctional Facility in March of 1999, he sought care for a sore neck. Mehlenbacher I, Dkt. No. 1. Mehlenbacher alleges he was given medicine that did not alleviate his pain, and that he was to see a specialist, but that consultation never occurred. Id. Although he alleges in all three complaints that he was assaulted by guards, the most detail in support of that claim is contained in the complaint in Mehlenbacher II. He alleges that the guards at Bare Hill beat him on his back and neck "in the box". Mehlenbacher II, Dkt. No. 1. Mehlenbacher further alleges that the guards spit and urinated into his food and drink. Id. Finally, he alleges that he was placed on the top bunk at Bare Hill and Upstate Correctional Facility, and such placement aggravated his neck pain. Id.; Mehlenbacher III, Dkt. No. 1.
The Court notes that there are no corrections officers named as defendants in these actions.
C. Exhaustion of Administrative Remedies
Before addressing the substance of Mehlenbacher's claims, the court must first consider whether he properly exhausted his administrative remedies. The Prison Litigation Reform Act of 1995 ("PLRA") provides that: No action shall be brought with respect to prison conditions under § 1983 . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
42 U.S.C. § 1997e(a) (2002). Moreover,
[T]he term "civil action with respect to prison conditions" means any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeus corpus proceedings challenging the fact or duration of confinement in prison . . .18 U.S.C. § 3626(g)(2) (2002). Although the Second Circuit originally held that the exhaustion requirement of § 1997e(a) did not apply to individualized cases of constitutional violations such as excessive force, the Supreme Court clarified the issue, holding that the exhaustion requirement applies to all cases brought with respect to prison conditions, regardless of whether they involve general circumstances or particular episodes. See Nussle v. Wilette, 224 F.3d 95, 106 (2d Cir. 2000), rev'd sub nom. Porter v. Nussle, 534 U.S. 516 (2002). Thus, an inmate is required to exhaust available administrative remedies as a precondition to commencing an action under § 1983 concerning any condition of confinement, including those alleged by Mehlenbacher.
DOCS has a well-established three-step grievance program. First, an inmate is to file a complaint with the Grievance Clerk. An inmate grievance resolution committee ("IGRC") representative has seven working days to informally resolve the issue. If there is no resolution, then the full IGRC conducts a hearing and documents the decision. Second, a grievant may appeal the IGRC decision to the superintendent, whose decision is documented. Third, a grievant may appeal to the central office review committee ("CORC"), which must render a decision within twenty working days of receiving the appeal, and this decision is documented.
White v. State of New York, No. 00-3434, 2002 U.S. Dist. LEXIS 18791, at *6 (S.D.N.Y. Oct. 3, 2002) (citing N.Y. Comp. Codes R. Regs. Title 7, § 701.7). Thus, if Mehlenbacher has failed to follow each step, he has failed to exhaust his administrative remedies as required by § 1997e(a).
The defendants contend that Mehlenbacher has failed to exhaust his administrative remedies. They provide the court with an affidavit from Thomas G. Eagan, Director of the Inmate Grievance Programs for the New York State Department of Corrections. Dkt. No. 52. Eagen states that Mehlenbacher failed to file any appeals with the Central Office Review Committee ("CORC") related to the issues presented in the claims before the court. Accordingly, this court recommends that Mehlenbacher's claims should be dismissed for failure to exhaust his administrative remedies.
However, the court notes that Mehlenbacher stated in his complaint that he complained to the Superintendent about the medical care he was receiving. Even if this court assumed that Mehlenbacher filed a complaint with the Superintendent, he has offered no evidence to suggest that he ever appealed any grievance to the CORC as would be required for full exhaustion under § 1997e(a). See Martinez v. Williams, 186 F. Supp.2d 353, 357 (S.D.N.Y. 2002); Saunders v. Goord, No. 98-8501, 2002 U.S. Dist. LEXIS 13772, at *10 (S.D.N.Y July 29, 2002). As such, this court recommends that the defendants' motion for summary judgment be granted without prejudice. See Morales v. Mackalm, 278 F.3d 126, 128, 131 (2d Cir. 2002) (per curiam) (holding that dismissal for failure to exhaust should be without prejudice to refiling after exhaustion).
WHEREFORE, based on the above, it is hereby
RECOMMENDED, that the motion for summary judgment be GRANTED in favor of the defendants (Dkt. No. 37 which was converted by Order Dkt. No. 50) and this action, together with the consolidated cases, be dismissed without prejudice; and it is further
ORDERED that the Clerk of the Court serve a copy of this Report-Recommendation upon the parties by regular mail.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).