Opinion
No. 98 Civ. 2743 (RPP)
August 20, 2002
Ivan Rodriguez, Pro Se #99-A-2866, Stormville, NY, for Plaintiff.
Fay Angela Jones, Esq., Office of the Westchester County Attorney, White Plains, NY, Attorneys for Westchester County for Defendants.
William R. Watson, Esq., O'Connor, McGuinness, Conte, Doyle Oleson, White Plains, NY, Attorneys for EMSA Correctional Care.
OPINION AND ORDER
Plaintiff Ivan Rodriguez, a prison inmate proceeding pro se, brings suit against Defendants pursuant to 42 U.S.C. § 1983. Plaintiff alleges that Defendants Westchester County Jail Correctional Department, Assoc. Warden Miranda, Sgt. G. Johnson (Supervisor of ERT), John Doe-1, John Doe-2, and Westchester County Jail (collectively "County defendants") violated Plaintiff's constitutional rights through the use of excessive force against him. Plaintiff also alleges that Defendant EMSA Correctional Care violated Plaintiff's constitutional rights through deliberate indifference to Plaintiffs medical injuries resulting from the use of excessive force against him.
The County defendants move for summary judgment, alleging, inter alia, that Plaintiff has failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act of 1995 ("PLRA"), as amended, 42 U.S.C. § 1997e(a). For the following reasons, the County defendant's motion is granted.
Factual Background
Plaintiffs claim pursuant to 42 U.S.C. § 1983 arises from an incident that occurred on October 26, 1997. On that date, a physical altercation, involving the use of shanks, broke out between two inmates in the 2K day room in the Westchester County Jail. (Plaintiffs Third Amended Complaint ("Complaint") at ¶ 8.) After being made aware that the block officer had been notified of the altercation, the inmates ceased fighting and attempted to rid themselves of possession of the shanks by dropping one to the floor in the bathroom and one in a bucket of water. (Id.) Plaintiff proceeded to pick up one of the shanks and secret it in the fold of his t-shirt to hide it from the corrections officers. (Id.) Members of the Emergency Response Team ("ERT") who arrived at the scene proceeded to search all inmates for weapons, and detected the shank in the collar area of Plaintiffs t-shirt. (Id. at ¶ 9.)
Plaintiff alleges that after removing the shank from his possession, Officer Rosendorn twisted Plaintiffs arm behind his back, grabbed him by the hair, and threw him to the ground. (Id.) Plaintiff alleges that he suffered injuries to his face, including a cut over his left eyebrow, and was knocked unconscious as a result of being thrown to the ground. (Id.) Plaintiff alleges that he was subsequently taken back to his cell, where he was beaten by Officer Rosendorn and two unknown officers. (Id.)
Plaintiff was subsequently brought to the facility clinic, where employees of EMSA Correctional Care tended to him. (Id. at ¶ 10.) Plaintiff alleges that EMSA employees refused to listen to and adequately examine Plaintiff when he complained about having pain in his chest, head, back, left wrist, and right rib cage, and that EMSA employees improperly used butterfly stitches to close the cut over his right eye, causing a permanent scar. (Id.)
On October 28, 1997, pursuant to further diagnostic tests by employees of EMSA Correctional Care, Plaintiff was found to have a fractured rib.
On February 17, 1998, Plaintiff filed the instant suit without having filed any administrative grievance regarding the officers' alleged use of excessive force.
Discussion
Suits filed by prisoners are governed by the Prison Litigation Reform Act ("PLRA"), Pub.L. 104-134, 110 Stat. 1321-66-1321-77. 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 v. Nussle 122 S.Ct. 983 (2002), the law of this Circuit was that § 1997e(a) governs only conditions affecting prisoners generally, not single incidents such the use of excessive force against an inmate. See Nussle v. Willette, 224 F.3d 95, 99-100 (2d Cir. 2000) (finding that federal actions for excessive force or assault did not relate to prison conditions, as defined in the PLRA). In Porter the Supreme Court unanimously reversed the Second Circuit's decision in Nussle, 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." 122 S.Ct. at 992.
On April 24, 2002, the Court ordered Plaintiff to make "a showing that he filed a grievance concerning his claim of excessive force by such officers on or about October 27, 1997, and that he has exhausted all administrative remedies in connection with such grievance." On or about May 22, 2002, Plaintiff filed a response to the Court's order, acknowledging that he had not filed a grievance concerning his claim of excessive force. Plaintiff argues, however, that his claim should be allowed to proceed because (1) at the time he filed his claim in 1998, Porter had not yet been decided and he was thus unaware that he had to file a grievance when the administrative process could not provide him with the remedy (monetary damages) that he was seeking; (2) he was transferred out of the jail where the incident took place; and (3) he was afraid of retaliation by the corrections officers involved.
The Court finds no merit in Plaintiffs argument that his claim should be allowed to proceed because Porter had not been decided at the time he filed his claim. The PLRA was passed in 1996 — a year before the October 26, 1997 incident in question. The text of § 1997e(a) clearly mandated exhaustion of administrative remedies prior to the commencement of any lawsuit concerning "prison conditions." As of late 1997/early 1998, no decision of the Second Circuit would have lead Petitioner to believe that he did not have to exhaust his administrative remedies prior to filing suit in district court. The Second Circuit decisions declaring that § 1997e(a)'s exhaustion requirement does not apply in cases where the plaintiff alleged a particular injury, such as the use of excessive force on him, were not handed down until well after the time when Petitioner failed to file a timely grievance. See, e.g., Lawrence v. Goord, 238 F.3d 182 (2d Cir. 2001) (inmates not required to exhaust administrative remedies before bringing action for particular, individualized instances of retaliation), vacated by, Goord v. Lawrence, 152 L.Ed.2d 139, 122 S.Ct. 1200 (2002); Nussle v. Willette, 224 F.3d 95 (2d Cir. 2000); Snider v. Dylag. 188 F.3d 51, 55 (2d Cir. 1999) (noting that "it is far from certain that the exhaustion requirement of 42 U.S.C. § 1997e(a) applies . . . where the relief requested is monetary"); Liner v. Goord, 196 F.3d 132, 135 (2d Cir. 1999) (noting a split in Circuits and district courts on the issue of "whether cases alleging the use of excessive force are actions `with respect to prison conditions' as that phrase is used in 42 U.S.C. § 1997e(a)", and declining to rule on it.) Accordingly, Plaintiff could not have relied on those decisions of the Second Circuit in deciding to forego exhausting his administrative remedies.
The Court also finds no merit in Plaintiff's argument that he did not file a grievance regarding the alleged use of excessive force against him because he was transferred out of the jail in which the incident took place. Plaintiff was incarcerated at the Westchester County Jail from July 15, 1997 through November 6, 1998. The alleged use of excessive force occurred on October 26, 1997, more than twelve months prior to transfer. Accordingly, Plaintiff had ample time to file a grievance, notwithstanding his subsequent transfer. See Polanco v. City of New York Dept. of Corrections, 2002 U.S. Dist. LEXIS 3108 (AGS) (S.D.N.Y. Feb. 25, 2002) (where plaintiff had administrative remedies available to him before he transferred, action must be dismissed for failure to exhaust administrative remedies); Burns v. Moore, 2002 U.S. Dist. LEXIS 1036 (THK) (Jan. 23, 2002) (where plaintiff had two months after alleged civil rights violation before transfer from city to state facility, transfer does not excuse failure to exhaust remedies); Berry v. New York 2002 U.S. Dist. LEXIS 10520 (JCF) (June 11, 2002) (although transfer can excuse a failure to exhaust administrative remedies, where the transfer took place after a grievance could have been filed and processed, the claim must be dismissed for failure to exhaust administrative remedies).
Finally, the Court finds no merit in Plaintiffs argument that he did not file a grievance because he was afraid of retaliation by the corrections officers involved. On its face, Plaintiffs claim is inconsistent with the fact that he filed this lawsuit in February 1998, while still an inmate at the Westchester County Jail. In addition, "[a] general fear of retaliation is not an exception to the PLRA's exhaustion requirement." Hines v. Valhalla County Corr., 2002 U.S. Dist. LEXIS 14550 (SAS) (S.D.N.Y. Aug. 6, 2002).
Conclusion
For the foregoing reasons, County defendants' motion for summary judgment is granted.
IT IS SO ORDERED.