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stating that the date stamped by the Pro Se Office is the date an action is commenced
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00 Civ. 3724 (WK)
May 5, 2003
George Rodney, Beacon, N.Y., Plaintiff — Pro Se
Bruce Brown, Esq., New York, New York, For Defendants
MEMORANDUM ORDER
Plaintiff George Rodney ("Plaintiff" or "Rodney"), pro se and incarcerated, filed this action pursuant to 42 U.S.C. § 1983 alleging that his constitutional rights were violated by Defendants' alleged harassment, retaliation, wrongful disciplinary charges and excessive use of force. Defendants are employees of the New York State Department of Correctional Services ("DOCS"). Rodney seeks both monetary and injunctive relief, including the rem oval of the disciplinary conviction from his inmate record.
BACKGROUND
1. Procedural History
In August 2001, Defendants moved to dismiss Plaintiff's complaint under Fed.R.Civ.P. 12(b)(1) and (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 February 27, 2001, I denied Defendants' motion in accordance with the controlling law at that time, Lawrence v. Goord (2d Cir. 2001) 238 F.3d 182 and Nussle v. Willette (2d Cir. 2000) 224 F.3d 95. On February 26, 2002, the United States Supreme Court reversed Willette, working a significant change on the law of this circuit. Porter v. Nussle (2002) 534 U.S. 516 (unanimously reversing and remanding the Second Circuit's judgment and holding that "the PLRA's exhaustion requirement 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."). In March 2002, Defendants requested permission to renew that motion to dismiss; I granted that request. Before the Court now is Defendants' Renewed Motion to Dismiss for failure to exhaust administrative remedies prior to commencing this action.
2. Factual Background
While the merits of Plaintiff's case are not at issue here, it is nonetheless useful to review the factual allegations. This action arises from incidents which allegedly occurred in January and February 2000. While Plaintiff is currently incarcerated at the Mid-Orange Correctional Facility ("Mid-Orange), the incidents at issue in this action occurred at the Fishkill Correctional Facility ("Fishkill"). Plaintiff alleges that Defendant O'Brien ("O'Brien"), a correctional officer at Mid-Orange, had been verbally harassing him. In response, on approximately January 23, 2000, Plaintiff wrote several letters of complaint to the Vice Consul of the Consul-General of Jamaica, to Defendant Goord, ("Goord"), Commissioner of DOCS, and to Defendant Mazzuca, ("Mazzuca"), Superintendent of Mid-Orange. (Compl. ¶ 14.) Plaintiff alleges that, on the day after he sent these letters, while on his way to the visiting area, O'Brien threatened him. (Id. ¶ 15.) Plaintiff informed his wife, Althea ("Althea"), and Defendant Ray, ("Ray"), a DOCS Sargeant, of O'Brien's actions. Ray allegedly told Plaintiff to file a complaint, but that he "could expect O'Brien to come after" him. (Id. ¶ 18.) In response to Plaintiff's allegations, Aletha sent a complaint to Defendant Perez ("Perez"). (Plaintiff's Supporting Affirmation (hereinafter "PSA"), Ex. 2.)
On January 30, 2000, Defendants Conklin ("Conklin"), Garnett ("Garnett") and Non ("Non") (collectively "Visiting Room Defendants") ordered Plaintiff to submit to a strip search prior to entering the visiting area to see Aletha. (Compl. ¶ 19.) Plaintiff alleges that during this strip search, the Visiting Room Defendants threatened him because of his complaints about O'Brien. (Id.) Once in the visiting area, Plaintiff complained to Ray and requested that he be placed in protective custody. (Id.) Ray took Plaintiff to the back area and spoke with him, informed him that he would speak with the Lieutenant, and returned Plaintiff to the visiting area. (Id.) At that point, Aletha asked Ray to call a Lieutenant. (Id.) At the conclusion of the visit, as Plaintiff was exiting the visiting room, he noticed Defendants Conklin, Garnett, Non and Correction Officer Murray ("Murray") near the visiting room exit. (Id. ¶ 20.) Plaintiff then returned to the visiting room and told Aletha that the aforementioned Defendants were "going to set him up." (Id.) Ray then directed Plaintiff to leave the visiting room and finally removed him from the visiting room. (Id. ¶ 21.) At the same time, Aletha used a pay phone to first call the state police, and then call the Mid-Orange facility itself, in the hopes of speaking with a lieutenant. (Id. ¶ 20.) Plaintiff alleges that after he was removed from the visiting room, Defendants Ray and Non assaulted him. (Id. ¶ 21.) He claims that when he awoke, he was in the Special Housing Unit and that O'Brien was there, "laughing and joking telling plaintiff, 'I told you I would get you.'" (Id.) Later that day, Plaintiff became ill and was taken to St. Luke's Hospital where he was hospitalized from January 30 to February 3, 2000. As a result of the visiting room incident, Defendants Marshall ("Marshall"), Hudson ("Hudson"), and Sargent ("Sargent") (collectively the "IM R Defendants") wrote an Inmate Misbehavior Report (the "IMR"), charging plaintiff with disturbing the order of the facility and refusing to obey a direct order. (Id. ¶ 25.)
On February 8, 2000, a "Tier III" Superintendent's hearing was held on the IMR. (Id. ¶ 26.) Defendant Perez, a Deputy Superintendent, presided over the disciplinary hearing. (Id.) After hearing from witnesses, Perez found Plaintiff guilty of the charges in the IMR and imposed a penalty of 45 days confinement in Fishkill's Special Housing Unit ("SHU"), and ninety days loss of privileges. (Id. at ¶ 28.)
Tier III hearings are held for "the most serious violations of institutional rules." Walker v. Bates (2d Cir. 1994) 23 F.3d 652, 654; 7 N.Y.C.C.R.R. § 270.3.
DISCUSSION
1. Legal Standard
Defendants move this Court to dismiss Plaintiff's action pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. We recently addressed the propriety of a motion to dismiss an inmate's action for lack of subject matter jurisdiction where he failed to exhaust his administrative remedies. See Arnold v. Goetz (S.D.N.Y. 2003) 245 F. Supp.2d 527, 531-34. For the reasons set forth in that opinion, we must deny Defendants' motion to dismiss to the extent that it is brought pursuant to Rule 12(b)(1). See id. at 534 ("[s]ince the PLRA's exhaustion requirement is an affirmative defense and not a jurisdictional prerequisite, dismissing an inmate's action for lack of subject matter jurisdiction where he failed to exhaust his administrative remedies would be inappropriate.")
In addition to their Rule 12(b)(1) challenge, the Defendants also contend that the Plaintiff's action must be dismissed pursuant to Rule 12(b)(6). Rule 12(b)(6) provides for the dismissal of a complaint for "failure to state a claim upon which relief can be granted." FED.R.CIV.P. 12(b)(6). Under that rule, the Court "must accept all factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff." Jaghory v. New York State Dep't of Educ. (2d Cir. 1997) 131 F.3d 326, 329. Dismissal of a complaint pursuant to Rule 12(b)(6) is proper "'only where it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle him to relief.'" Scoto v. Almenas (2d Cir. 1998) 143 F.3d 105, 109-110 (quoting Branham v. Meachum (2d Cir. 1996) 77 F.3d 626, 628 (citation omitted)). Furthermore, where, as here, we are considering a motion to dismiss the claims of a litigant proceeding pro se, we must construe that litigant's pleadings liberally, especially when we are dealing with a complaint alleging civil rights violations. Weinstein v. Albright (2d Cir. 2001) 261 F.3d 127, 132. See also Flaherty v. Lang (2d Cir. 1999) 199 F.3d 607, 612.
Defendants argue that Plaintiff's action must be dismissed because he failed to exhaust his administrative remedies prior to commencing this action. Since the PLRA's exhaustion requirement is an affirmative defense, Defendants "bear the burden of proving plaintiff's failure to comply with the exhaustion requirement." Reyes v. Punzal (W.D.N.Y. 2002) 206 F. Supp.2d 431, 433.
2. Exhaustion Requirement
"Ordinarily, 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. However, "Congress, in enacting the Prison Litigation Reform Act of 1995, Pub.L. No. 104-134, Title VIII, 110 Stat. 1321-66 (1996), carved out an exception to the general rule that exhaustion of state remedies is not a prerequisite to filing suit under 42 U.S.C. § 1983." Neal v. Goord (2d Cir. 2001) 267 F.3d 116, 119.
The PLRA provides that "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). This requirement "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, 534 U.S. at 532. Inmates must therefore exhaust all administrative remedies, at all levels of appeal, in order for their claims to survive a motion to dismiss. See Hemphill v. New York (S.D.N.Y. 2002) 198 F. Supp.2d 546, 548.
Prior to Porter, the Second Circuit had concluded "that exhaustion of administrative remedies [was] not required for claims of assault or excessive force brought under § 1983." Willette, 224 F.3d at 106, rev'd, (2002) Porter, 534 U.S. at 532. Although Rodney brought this action before the Supreme Court announced its decision in Porter, "'the broad exhaustion requirement announced in [Porter] applies with full force' to a litigant . . . who brought suit prior to the dates of its decision." Mack v. Artuz (S.D.N.Y. Dec. 19, 2002) 01 Civ. 11832(JSR) (GWG), 2002 WL 31845087, at *3 n. 2 (quoting Espinal v. Goord (S.D.N.Y. 17, 2002) 01 Civ. 6569(NRB), 2002 WL 1585549, at *2 n. 3). See generally Harper v. Virginia Dep't of Taxation (1993) 509 U.S. 86, 97 ("When [the Supreme] Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law must be given full retroactive effect in all cases still open on direct review as to all events, regardless of whether such events predate or postdate announcement of the rule.")
Plaintiff's § 1983 action, predicated on allegations of harassment, excessive force, and the filing of a false misbehavior report and subsequent disciplinary action, is subject to § 1997e(a). As such, Plaintiff is subject to the exhaustion requirement imposed by the PLRA and cannot proceed with this lawsuit unless he exhausted available administrative remedies prior to filing his complaint. Burns v. Moore (S.D.N.Y. Jan. 24, 2002) No. 99 Civ. 0966(LMM) (THK), 2002 WL 31663510, at *3 ("Where an inmate fails to satisfy the PLRA's exhaustion requirement prior to filing his complaint, the court must dismiss the complaint and require the plaintiff to exhaust his remedies before refiling.")
3. Administrative Remedies
New York provides an elaborate administrative grievance process for prisoners in New York State correctional facilities. See Cruz v. Jordan (S.D.N.Y. 1999) 80 F. Supp.2d 109, 117. See also N.Y. Correct. Law § 139; 7 N.Y. Comp.Codes R. Regis. tit. 7, § 701.1 et seq. This process, known as the Inmate Grievance Program ("IGP"), sets forth both a formal procedure for all grievances as well as a less elaborate procedure for complaints about "harassment." See 7 N.Y.C.R.R. §§ 701.7, 701.11. In brief, the formal procedure consists of three steps; in order for a prisoner to exhaust administrative remedies where the formal procedure is at issue, he must proceed through all three levels of the procedure — that is, he must secure CORC review of his grievance in order to fully exhaust administrative remedies. See Hemphill, 198 F. Supp.2d at 549.
The review process begins when a complaint is submitted to the inmate grievance resolution committee ("IGRC"). The three step review process begins when (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 a harassment case, such as where an inmate alleges the use of excessive force by a DOCS employee, the administrative review is streamlined by eliminating the first step of the administrative procedure. 7 N.Y.C.R.R. §§ 701.11(b)(1) (b)(3). See also Perez v. Blot (S.D.N.Y. 2002) 195 F. Supp.2d 539, 542-543; Morris v. Eversley (S.D.N.Y. 2002) 205 F. Supp.2d 234, 240. A grievance is filed with both the Inmate Committee and the harassing employee's supervisor. If the grievance raises a bona fide harassment issue, review at the first level is bypassed and the matter is sent directly to the Superintendent for review. Hemphill v. New York (S.D.N.Y. 2002) 198 F. Supp.2d 546, 549.
Inmates may also comply with the IGP by resolving their grievances through informal channels. See Marvin v. Goord (2d Cir. 2001) 255 F.3d 40, 43 n. 3 (citing 7 N.Y. Comp.Codes R. Regs.tit. 7 § 701.1) ("Resolution of the matter through informal channels satisfies the exhaustion requirement, as, under the administrative scheme applicable to New York prisoners, grieving through informal channels is an available remedy.") See also Heath v. Saddlemire (N.D.N.Y. Oct. 7, 2002) No. 96-CV-1998 (FJS/RF), 2002 WL 31242204, at *3; Perez, 195 F. Supp.2d at 545-546.
Finally, an inmate subject to discipline after a Superintendent's Hearing has the right to appeal the disposition to the commissioner. 7 N.Y.C.R.R. §§ 254.8. The commissioner or his designee may then affirm, reverse, remand or modify the determination made at the hearing. 7 N.Y.C.R.R. §§ 254.8(a)-(d). Furthermore, at any time the inmate is subject to the penalty imposed, the superintendent may review the determination and reduce the penalty. 7 N.Y.C.R.R. § 254.9. However, the filing of an allegedly false misbehavior report is a grievable matter . . . Cherry v. Selsky (S.D.N.Y. July 7, 2000) No. 99 Civ 4636(HB), 2000 WL 943436, at *7. See also N.Y.C.C.R.R. § 701.2(e) (prisoners are permitted to file grievances regarding "[a]llegations of employee misconduct meant to annoy, intimidate or harm a employee.") Thus, an inmate alleging that a misbehavior report is false must exhaust his claim administratively through the IGP procedure prior to filing a complaint alleging the same.
4. Plaintiff's Attempts at Exhaustion
As a preliminary matter, Defendants rightly point out that Plaintiff admits, in the first paragraph of his complaint, that he did not exhaust his administrative remedies and that, moreover, exhaustion was not required. (Defs.' Mem. of L. in Supp. of Renewed Mot. to Dismiss at 5) (hereinafter "Defs.' Mem. in Supp.") However, Plaintiff has since submitted a "Supporting Affirmation" which details — and provides exhibits supporting — his efforts to navigate the administrative remedies available to him. Where, as here, we are considering a motion to dismiss the claims of a litigant proceeding pro se, we construe that litigant's pleadings liberally, especially when we are dealing with a complaint alleging civil rights violations. Weinstein, 261 F.3d at 132. In order fully to evaluate whether or not Plaintiff did indeed exhaust his remedies, we will read the Supplemental Affirmation together with the complaint to raise the strongest argument they suggest, as befits a motion to dismiss opposed by a pro se plaintiff. We decline Defendants' invitation to hold Plaintiff to his statements regarding exhaustion made in the complaint where those statements contradict the exhibits submitted with the Supplemental Affirmation.
A second preliminary matter concerns the date this action was commenced. Plaintiff argues that the action was commenced May 17, 2000, the date that the docket indicates the complaint was filed. Plaintiff's argument must fail. In federal court, actions are commenced by filing a complaint with the court. FED.R.CIV.P. 3. In pro se inmate cases, complaints are deemed filed when the prisoner relinquishes control to the prison officials. Houston v. Lack (1988) 487 U.S. 266; Dory v. Ryan (2d Cir. 1993) 999 F.2d 679. Because it is often difficult to determine the date a prisoner relinquished control of a particular document, the date stamp from the Pro Se Office acts as the date a complaint is "deemed" filed. Toliver v. County of Sullivan (2d Cir. 1988) 841 F.2d 41. Plaintiff's complaint in this case bears a stamp from the Pro Se Office with the date April 7, 2000. Therefore, this action was commenced on April 7, 2000. We now turn our attention to the question of exhaustion.
a. Exhaustion of claims of harassment and excessive force
Plaintiff's own submissions make clear that he did not administratively exhaust his claims prior to the commencement of this action on April 7, 2000. (See, e.g., PSA Exs. 12, 14.)
Plaintiff grieved O'Brien's harassment on January 23, 2000 via letter to Defendant Mazzuca. (PSA Ex. 1.) This letter was apparently accepted as a complaint; a letter dated February 22, 2000 from Deputy Commissioner Leclaire ("Leclaire") states that Plaintiff's "concerns were investigated and [he] was replied to on February 3, 2000 by Lieutenant Cave. No evidence was found to support [his] allegation." (PSA Ex. 7.) A letter dated March 29, 2000 from Assistant Commissioner Wilhelm explains that his own letter, as well as Leclaire's letter of February 22, were in response "to a complaint filed by [Plaintiff] on January 23, 2000." (Id.) No evidence has been submitted, nor does Plaintiff allege, that he ever appealed the outcome of the investigation of his harassment claims against O'Brien. Accordingly, we must find that Plaintiff failed to exhaust the administrative remedies available to him prior to commencing this case. Defendants' motion to dismiss for failure to exhaust administrative remedies is therefore granted insofar as that motion deals with Plaintiff's harassment claims against O'Brien.
It is unclear from the parties' submissions when Plaintiff submitted a formal complaint relating to the Visting Room Defendants. Nonetheless, working backwards from Plaintiff's submissions, it is clear that available administrative remedies were not exhausted until August 16, 2000, when Plaintiff's appeal to CORC was denied. (PSA Ex. 14). Accordingly, we must find that Plaintiff failed to exhaust the administrative remedies available to him prior to commencing this action. Defendants' motion to dismiss for failure to exhaust administrative remedies is therefore granted insofar as that motion deals with Plaintiff's harassment claims against O'Brien.
b. Exhaustion of claims of false misbehavior report and discipline
Following his February 8, 2000 "Tier III" hearing on the IMR, Plaintiff sent a letter appealing the hearing's outcome to Defendant Goord. (Pl.'s Supplemental Affirmation Ex. 11) (hereinafter "PSA"). This letter is dated February 24, 2000 and was sent in accordance with 7 N.Y.C.R.R. §§ 254.8 which grants an inmate subject to discipline after a Superintendent's Hearing the right to appeal the disposition to the commissioner. The appeal was affirmed, following review of the hearing, on April 13, 2000. (Id.) Plaintiff followed the commissioner's affirmation with a letter request for reconsideration of the appeal on May 30, 2000. (Id.) This letter was directed to Donald Selsky ("Selsky"), the Director of Special Housing/Inmate Disciplinary Program. (Id.) Because Plaintiff's appeal of his Tier III hearing was not affirmed until April 13, 6 days after this action was commenced, it is clear that he did not exhaust the available administrative remedy for challenging the supervisory hearing prior to commencing this action as required by the PLRA. Accordingly, Defendants' motion to dismiss Plaintiff's claim for failure to exhaust administrative remedies is granted as it relates to Plaintiff's claims regarding the February 8 Supervisory Hearing and the commissioner's subsequent review . . .
To the extent that Plaintiff seeks relief in this Court from a falsely filed IMR, we must also grant Defendants' motion to dismiss for failure to exhaust administrative remedies. Plaintiff never alleges that he grieved, through the IRC, the filing of the allegedly false IMR. Since the filing of an allegedly false misbehavior report is a grievable matter, Plaintiff's failure to so grieve leaves us with no alternative but to dismiss the action to the extent that it states a claim for relief on this ground. See Cherry v. Selsky (S.D.N.Y. July 7, 2000) No. 99 Civ 4636(HB), 2000 WL 943436, at *7. See also N.Y.C.C.R.R. § 701.2(e) (prisoners are permitted to file grievances regarding "[a]llegations of employee misconduct meant to annoy, intimidate or harm a employee.")
CONCLUSION
Defendants' motion to dismiss pursuant to Rule 12(b)(1) is DENIED.
Defendants' motion to dismiss pursuant to Rule 12(b)(6) is GRANTED. The Clerk of the Court is directed to close the file.
SO ORDERED.