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holding that non-exhaustion may be excused in circumstances "where it is alleged that corrections officers failed to file the inmate's grievances or otherwise impeded or prevented his efforts"
Summary of this case from Torres v. Aramark Food & Commissary Servs. of the Orange Cnty. Corr. FacilityOpinion
No. 01 Civ. 3251 (HB)
April 29, 2002
OPINION AND ORDER
Plaintiff Joseph O'Connor ("O'Connor"), a state inmate proceeding pro se, alleges that defendants, corrections officers at the Downstate Correctional Facility, beat him with excessive force in violation of his Eighth Amendment right against cruel and unusual punishment. O'Connor sued under 42 U.S.C. § 1983. The defendants, via the Office of the State Attorney General, moved to dismiss plaintiff's complaint under Fed.R.Civ.P. 12(b)(6) for his failure to exhaust administrative remedies as required by the Prison Litigation Reform Act of 1995 ("PLRA"), as amended, 42 U.S.C. § 1997e(a). On January 24, 2002, I denied the defendants' motion in accordance with the controlling law at the time, Nussle v. Willette, 224 F.3d 95 2d 2000) ("Nussle"). On February 26, 2002, the United States Supreme Court reversed Nussle inPorter v. Nussle, 534 U.S. 516, 122 S.Ct. 983 (Feb. 26, 2002) ("Porter"), and the defendants renew their motion to dismiss in light of that decision. I directed the parties to submit any further thoughts on the renewed motion no later than March 31, 2002, and the plaintiff timely submitted an additional brief with exhibits. For the following reasons, the defendants' motion is DENIED.
Reference to the plaintiffs complaint is made with respect to his amended complaint filed September 25, 2001.
I. DISCUSSION
O'Connor's civil rights claim, brought under 42 U.S.C. § 1983, arises from an incident that occurred on June 21, 2000, while he was an inmate at the Downstate Correctional Facility ("Downstate"). O'Connor alleges he was beaten by several correctional officers at Downstate in violation of his constitutional rights. The merits of O'Connor's federal claim, however, are not at issue here. The defendants, for the second time, assert that O'Connor's claim should be dismissed because he failed to comply with, and exhaust, the grievance regulations of the New York State Department of Correctional Services ("DOCS") as required under the PLRA.
The grievance procedures provide a three-step review process. Once a complaint is submitted to the inmate grievance resolution committee ("IGRC"), (1) the grievance is investigated and reviewed by the IGRC, which is comprised of inmates and DOCS' employees; (2) if appealed, the Superintendent of the facility reviews the IGRC's determination; and (3) if the superintendent's decision is appealed, the Central Office Review Committee (CORC) makes the final administrative determination. See 7 N.Y.C.R.R. 701.7.
In relevant part, the PLRA provides:
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.42 U.S.C. § 1997e(a).
Prior to the Supreme Court's recent decision in Porter, the law of this Circuit permitted prisoners with claims such as O'Connor's to forego the PLRA's exhaustion requirement for § 1983 lawsuits brought with respect to excessive force. See Nussle v. Willette, 224 F.3d 95, 99-100 2d 2000) (finding that federal actions for excessive force or assault did not relate to prison conditions, as defined in the PLRA) ("Nussle").
As of Porter. there is no longer an excessive force exception to the PLRA's exhaustion requirement, which now "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter, 122 S.Ct. at 992 (reversing Nussle).
Porter however, is not dispositive of the plaintiff's case here. While the holding in Porter was based on the Supreme Court's delineation of the term "prison conditions" so as to encompass claims with respect to excessive force, the Court was otherwise silent as to the outer limits of other sections of the statute, in particular, the circumstances that may serve to satisfy the requirement of when "administrative remedies as are available are exhausted."
In this regard, several courts have held that an inmate may nonetheless defeat a motion to dismiss even when the requirements of administrative remedies have not technically been exhausted where (1) an inmate was led to believe by prison officials that his alleged incident was not a "grievance matter" and assured that his claims were otherwise investigated, see Feliciano v. Goord, 1998 WL 436358, *2 (S.D.N.Y. June 27, 1998) (Cote, J.,), (2) an inmate makes a "reasonable attempt" to exhaust his administrative remedies, especially where it is alleged that corrections officers failed to file the inmate's grievances or otherwise impeded or prevented his efforts, see Rodriguez v. Hahn, 11663, 2000 WL 1738424, *2 (S.D.N.Y. Nov. 22, 2000) (Marrero, J.,); see also Gonzalez v. Officer in Charge of Barber Shop on Duty on May 13, 1999, 2000 WL 274184, *3 (S.D.N.Y. Mar. 13, 2000) (Cote, J.,) (denying motion to dismiss where inmate's claims raised issue of fact as to his efforts to exhaust); Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001) (holding that a "remedy" is not "available" under the PLRA where prison officials prevented a prisoner from "utilizing" them); Shah v. Quinlin, 901 F.2d 1241, 1244 (5th Cir. 1990) (finding that dismissal is premature where pro se inmate showed a "substantial effort to obtain an administrative remedy" and alleged that irregularities in the administrative process itself prohibited him from exhausting those remedies); Holloway v. Gunnell, 685 F.2d 150, 154 (5th Cir. 1982) ("[W]e do not think that a pro se complaint should be dismissed on its face by a technical reading of the available administrative procedures when plaintiff has made detailed allegations showing a substantial effort to obtain an administrative remedy."), and (3) the state's time to respond to the grievance has expired, see Powe v. Ennis, et al., 177 F.3d 393, 394 (5th Cir. 1999);Goodman v. Carter, 2001 WL 755137, *3 (N.D. Ill. July 2, 2001) (Lindberg, J.,).
Here, O'Connor's efforts to avail himself of DOCS' administrative process similarly fall within the exceptional circumstances noted above, each of which constituted a sufficient showing to defeat a motion to dismiss.
Pursuant to DOCS' procedures, an inmate is required to submit a grievance to the Grievance Clerk within fourteen calender days of an alleged occurrence. See 7 N.Y.C.R.R. 707.7(a)(1). O'Connor failed to file a grievance within the proscribed time, but he asserts that he was unable to do so because he was placed in "medical restriction" for fourteen days immediately following the incident. According to O'Connor, while he was in medical restriction he was refused a grievance form, despite his repeated requests. (O'Connor letter dated July 30, 2001). The defendants point out that grievances, while typically submitted via an Inmate Grievance Complaint Form #2131, may also be submitted on any piece of plain paper if the form is not readily available. 7 N.Y.C.R.R. 707.7(a)(1). This may be true, but that does not excuse the fact that the prison officials were not especially helpful in this instance. I also consider, as O'Connor suggests, that his designation to medical restriction for exactly fourteen days — the same amount of time that is required to file a grievance — was perhaps something more than a coincidence.
In any event, the grievance procedure provides that a grievance will be accepted after the fourteen-day time limit if there exist mitigating circumstances. 7 N.Y.C.R.R. 707.7(a)(1). O'Connor claims that he filed a late grievance after he was released from medical restriction, (O'Connor letter dated July 30, 2001), although DOCS claims to have no record of it. (Affd. Thomas Eagen, director of Inmate Grievance Program). O'Connor, however, submitted to the Court a copy of a letter he wrote dated August 1, 2000, to the Superintendent of Downstate, John McGinnis ("McGinnis"), to inform him that a grievance had been filed and to inquire why no action had since been taken. (O'Connor Ex. D).
Strangely, the semblance of an investigation was initiated. McGinnis, in a letter dated August 9, 2001, informed O'Connor that he had referred the case to the Office of the Inspector General to "make an investigation," and that O'Connor should contact the Inspector's office for further information. (O'Connor Ex. E). Accordingly, O'Connor, wrote two letters to Douglas Holland ("Holland") of DOCS' Internal Affairs Unit in September, 2001, to inquire about the status of the investigation. These letters apparently went unanswered. In yet another attempt to find out about the status of his case, O'Connor followed his letters with a Freedom of Information Act ("FOIA") request for the records relating to the incident. (O'Connor Ex. F). In a letter dated October 19, 2000, DOCS notified O'Connor that his FOIA request was denied because "the investigation is ongoing." (O'Connor Ex. F). Subsequently, O'Connor sent two letters — one in October, 2000, and another in November, 2000 — to Holland to appeal the denial of his FOIA request and to again inquire about the status of the investigation. (O'Connor Ex. F). There is no indication that these letters were answered. In April 19, 2001, O'Connor filed a complaint in the instant action.
While O'Connor may have failed to exhaust the technical requirements of DOCS' grievance procedures, it cannot be said that his efforts to comply, which included a FOIA request, an appeal of the denial of that request, several inquiries to various divisions within DOCS, were not substantial or reasonable. O'Connor was apparently led to believe from the letters from McGinnis and Holland that his claims were being investigated at some level, and his letters to inquire about the status of the investigation — which seems to have stalled — evidence an attempt to exhaust at least this avenue. Additionally, O'Connor appealed the one decision he did receive from the state, in relation to the denial of his FOIA request, although the disposition of that appeal seems to have stalled as well. In light of McGinnis's suggestion that O'Connor follow-up his claims through the Inspector General's office, rather than pointing him to the grievance procedures, the defendants cannot be heard to argue that O'Connor's claims are nevertheless dismissed for failure to exhaust the grievance procedures. In fact, this Court would like to understand precisely what transpired, and an affidavit from Holland within thirty days will suffice.
While the Supreme Court's decision in Porter foreclosed one avenue for the prisoner litigant to receive his day in court, I have no doubt that the Justices were also cognizant of the situational problems that color the day-to-day realities between the "keeper and the kept" — a relationship that can occasionally cloud the fair and just adjudication of legitimate claims. See Cleavinger v. Saxner, 474 U.S. 193, 203 (1985) ("It is the old situational problem of the relationship between the keeper and the kept, a relationship that hardly is conducive to a truly adjudicatory performance.").
Keeping in mind my anecdotal experience overseeing the Riker's Island litigation, I similarly do not turn a blind eye to the precarious circumstances that accompany the efforts of a litigant who is without representation and behind prison bars. Further, I consider the plaintiffs allegations in light of the liberal reading that is afforded a pro se prisoner's complaint, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and the inferences that are to be drawn in his favor on the motion herein.See Madonna v. United States, 878 F.2d 62, 65 (2d. Cir. 1989) (noting that the court is required in a motion to dismiss to accept as true all of the facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor).
I refer here to the ongoing litigation with respect to Benjamin v. Jacobson, 935 F. Supp. 332 (S.D.N.Y. 1996).
II. CONCLUSION
For the foregoing reasons, the defendants' renewed motion to dismiss is DENIED. The parties will appear (the defendant by telephone) for a scheduling conference on Thursday, May 16, 2002, at 11:20 A.M. to set dates for discovery, dispositive motions and trial. The Assistant Attorney General is to arrange for the plaintiff's attendance via phone.