Summary
observing that PLRA permits a court to dismiss case on the merits without regard to exhaustion
Summary of this case from Brown v. FischerOpinion
No. 00 Civ. 1302 (LTS)(HBP)
September 12, 2003
MEMORANDUM ORDER
Plaintiff Delano Sedney brings this action pursuant to 42 U.S.C. § 1983, alleging violations of his Eighth and Fourteenth Amendment rights. Defendant Haase moves the Court pursuant to Rule 56(c) of the Federal Rules of Civil Procedure for an order dismissing the First Amended Complaint (the "Complaint"). The Court has considered thoroughly all submissions in connection with the instant motion. For the following reasons, Hasse's motion is granted to the extent that Plaintiff's claims against Haase are dismissed without prejudice for failure to exhaust administrative remedies.
BACKGROUND
The following facts are undisputed unless characterized otherwise. At all relevant times, Plaintiff, an inmate at Great Meadow Correctional Facility, was housed in the Special Housing Unit ("SHU") at Sing Sing Correctional Facility in Ossining, New York ("Sing Sing"). Defendant Haase, a Sergeant with the New York State Department of Correctional services ("DOCS"), was at all relevant times employed at Sing Sing. On November 7, 1999, after a visit with his brother in the visiting area, Plaintiff was strip searched by a Corrections Officer. No contraband was discovered in this search and Plaintiff was returned to his cell in SHU. Plaintiff alleges that shortly after his return, Corrections Officers Blot, Caraballo and McDonough entered his cell, physically assaulted him, and then dragged him to the strip search area, where Haase was present. (Sedney Decl. ¶¶ 6-9.) Plaintiff alleges that Haase ordered him to bend forward and spread his buttocks and to remain in that position, and that Haase threatened to ram a rod into his rectum if he moved or failed to spread his buttocks wide enough. (Id. ¶ 8.) Plaintiff also alleges that Haase then opened the window in the search area, letting in cold air, and that Plaintiff stood bent over for 20 to 30 minutes before he was returned to his cell. (Id. ¶¶ 9-10.)
Plaintiff alleges that, "shortly after" the incident described above, he mailed a letter complaining about the incident to the grievance office, with copies to First Deputy Smith and the Superintendent. (Id. ¶ 11.) According to Plaintiff, Blot, Caraballo, and McDonough administered the mail. (Id. ¶ 12.) Plaintiff alleges that he never received a stamped copy of his letter indicating receipt of the letter by the grievance office. (Id. ¶ 13.) Plaintiff has not proffered a copy of this letter to the Court.
Plaintiff also alleges that, on November 9, 1999, he wrote to Deputy Connolly concerning the November 7th incident. (Id. ¶ 14.) In this letter, a copy of which is annexed to Plaintiff's affidavit in opposition to the motion, Plaintiff asserted that Haase, Blot, Caraballo, McDonough and a C.O. Creeden had planted contraband in Plaintiff's cell in retaliation for Plaintiff's prior complaints about those officers. With respect to the alleged November 7, 1999, incident the letter asserts that, after a "routine" strip search by Creeden, Plaintiff was removed from his cell by Blot, McDonough, Caraballo and Creeden, who "slammed [his] face down on [his] bed[,] . . . handcuffed" him, took him "back upstairs" where Blot again strip searched him, "in front of Sgt. Haase!" According to the letter, Caraballo returned and gave Plaintiff a contraband receipt 15 to 20 minutes later; Plaintiff told Haase that the material had been planted in his cell. The letter requests that Plaintiff be removed from "Sing Sing . . . H.B.C." and asserts:`"2 weeks' ago" (sic), `"Sgt. Haase told me that he will give me something to write about,' . . . and now this'" The letter contains no further allegations concerning Sergeant Haase. See Letter dated November 9, 2003, Ex. A to Sedney Decl. Plaintiff alleges that, "[a] few days" after November 7, 1999, he gave a copy of his "grievance letter" to Deputy Smith, who "promised to investigate" the incident. (Sedney Decl. ¶ 15.)
Plaintiff further alleges that, "[s]till having received no response from the grievance office," he "direct[ed]" another "grievance letter" to the First Deputy and the Superintendent. (Id. ¶ 16.) This letter, which was addressed "To Grievance" and was dated November 18, 1999, was assigned Grievance Number SS/30551/99 by prison officials (the "November 18th Grievance"). In it, Plaintiff alleged that Blot had entered Plaintiff's cell while Plaintiff was absent, characterizing the alleged incident as the third time that Blot had done so and alleging that Blot had planted contraband in Plaintiff's cell on the first occasion. (November 18 Grievance, Ex. B to Sedney Decl.) The letter asserts that November 7, 1999, was the second occasion on which Blot had entered Plaintiff's cell improperly, and accuses Blot and McDonough of taking him out of his cell on that occasion and giving him a contraband receipt. There is no description of the strip search nor any allegation of an assault on that occasion; with respect to Sergeant Haase, the letter simply alleges generally that "C.O. Blot[,] McDonough and Sgt.
Haase are mad because I wrote Dep. Smith regarding this `set up' and constant harassment." Id. The letter concludes with additional allegations regarding Blobs's behavior and an assertion that Blot "is out of control and really need to be evaluated and tested for drugs." Id.
In a November 28, 1999, letter to Deputy Commissioner of DOCS Lucien LeClaire, which is date-stamped as having been received by the Deputy Commissioner's office on December 2, 1999, Plaintiff describes the alleged November 7, 1999, incident and requests action as follows:
On 11/7/99 I was beaten in my cell by C.O. Blot, C[.O.] Caraballo and C.O. McDonough. `I was written a misbehavior report for possessing contraband,'. Please investigate this matter, `Then you will see how my right [(sic)] have been violated'. These officers ran into my cell and jumpt [(sic)] me then plant contraband in my cell.
(Ex. C to Sedney Decl. (the "November 28th Letter")). The letter concludes with a request for an "Albany investigation." Id.
The allegations in the November 28th letter were investigated as part of the investigation of the November 18th Grievance. (Kober Aff. ¶ 8.) According to a Superintendent's Report, dated January 7, 2000, with respect to the November 18th Grievance, Plaintiff's complaints were investigated by a Lt. Farrell and officers Blot, McDonough and Caraballo denied Plaintiff's allegations of assault and improper searches. With respect to the information provided by Plaintiff in connection with the investigation, the Report represents that
In an interview with Lieutenant Farrell, Grievant stated that he had nothing further to say or add to the Lieutenant. He provided no evidence or witnesses to substantiate his claim.
(Report, Ex. D to Kober Aff.) The Report concludes that "it appears at this time that this complaint is without merit." Id. Plaintiff appealed the determination, requesting further information. Id. In a February 23, 2000 memorandum, the Inmate Grievance Program Central Office Review Committee ("CORC") upheld the Superintendent's determination, finding, inter alia, that the investigation had been appropriate and that Plaintiff had not substantiated his claims. (Ex. E to Kober Aff.)
Plaintiff has pursued numerous complaints through the inmate grievance system process. See December 30, 1999 memorandum from Capt. Minogue to DSS Connolly, Ex. B to Deft.'s Reply Mem. (listing 33 grievances and other complaints by Plaintiff initiated in year 1999).
Defendants concede that Plaintiff has exhausted his administrative remedies with respect to his complaints as against officers Blot, Caraballo and McDonough. (Kober Aff. ¶ 8; April 23, 2002 letter to Court from Asst. Atty. General Hartofilis, Ex. A to July 26, 2002 Shortall Decl. ("Hartofilis Letter")). Defendants further concluded, and represented to the Court prior to initiation of the instant motion practice, that "a motion for summary judgment based on plaintiff's failure to exhaust his administrative remedies will not be filed on behalf of defendants Blot, Caraballo and McDonough." (Hartofilis Letter at 2.)
DISCUSSION
Summary judgment shall be granted in favor of a moving party where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the burden of establishing the absence of any genuine issue of material fact. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 256 (1986). In the summary judgment context, a fact is material "if it might affect the outcome of the suit under the governing law," and an issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Holtz v. Rockefeller and Co., 258 F.3d 62, 69 (2d Cir. 2001) (internal citation omitted).
In determining whether a genuine issue of material fact exists, a court must examine the evidence in the light most favorable to, and draw all inferences in favor of, the non-movant. Summary judgment is improper if there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party.Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003) (internal quotation marks omitted).
Exhaustion of Administrative Remedies
Haase seeks dismissal of the Complaint as against him on the ground that Plaintiff failed to exhaust his administrative remedies with respect to the claims against Haase. The Prison Litigation Reform Act of 1995 (the "PLRA") provides that "no action shall be brought with respect to prison conditions under section 1983 of this title, or any federal law, by a prisoner confined in any jail, prison, or correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C.A § 1997e(a) (West 1994 and Supp. 2003). In Porter v. Nussle, the Supreme Court held that the 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." 534 U.S. 516 (2002). All available remedies must be exhausted, whether or not they meet federal standards or are "plain, speedy, and effective." Booth v. Churner, 532 U.S. 731, 739-41 (2001). Even when the prisoner seeks relief, such as monetary damages, that is not available in grievance proceedings exhaustion is still required before the commencement of a lawsuit. Id.
In a reply brief in support of the instant motion, Defendants' counsel argues that the entire action must be dismissed if the Court concludes that Plaintiff has failed to exhaust his administrative remedies as to Defendant Haase. The affirmative defense of non-exhaustion has, however, been waived as to all defendants other than Haase. See Hartofilis Letter. See also Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir. 1999) (exhaustion is affirmative defense as to which defendant bears burden of proof); Ray v. Kertes, 285 F.3d 287, 293 (3d Cir. 2002) (exhaustion requirement may be subject to waiver, estoppel or equitable tolling) (citing Wendell v. Asher, 162 F.3d 887, 890 (5th Cir. 1998)).
DOCS maintains a three-step prison grievance process, which has been summarized as follows:
First, an inmate must file a complaint with the Inmate Grievance Resolution Committee (`IGRC') within 14 days of the alleged event. The IGRC must then investigate and may resolve the issue informally within seven days. If there is no informal resolution, a hearing is held, and the inmate may appeal to the superintendent of the facility within four days of the IGRC's action. Finally, after receiving a response from the superintendent, the prisoner may appeal that decision to the Central Office Review Committee (`CORC') within four days of its receipt. The CORC, in turn, must render a decision within 20 days.Harris v. Totten, 244 F. Supp.2d 229, 233 (S.D.N.Y. 2003) (citations omitted). "In the Second Circuit, exhaustion is an affirmative defense, and thus defendants bear the burden of proof." Branch v. Brown, No. 01 Civ. 8295, 2003 WL 21730709, at *8 (S.D.N.Y. July 25, 2003). Id. Defendant Haase has carried his burden of demonstrating that Plaintiff failed to exhaust his administrative remedies prior to the commencement of this lawsuit insofar as it relates to Plaintiff's claims against Haase in connection with the alleged November 7, 1999, incident, which appears to lie at the heart of Plaintiff's excessive force and verbal abuse claims. Defendants proffer evidence that the November 18, 1999 Grievance was the only one filed by Plaintiff in connection with the November 7, 1999 incident. See Kober Aff. at 7-9. Neither the November 18, 1999 Grievance nor the November 28th letter that was investigated along with that Grievance contained any allegation that Haase was involved in either of the alleged November 7, 1999 strip search incidents. The Grievance merely alleges, as to Haase, that he and the other defendants were angry with Plaintiff for complaining about fabricated contraband reports.
The November 28th letter does not mention Haase at all. Defendants' uncontroverted evidence concerning the investigation of those complaints indicates that Plaintiff offered no further details or corroborating evidence to the investigating officer. There is thus no indication that Plaintiff's allegations of Haase's involvement in the allegedly improper second strip search on November 7, 1999, nor any threats by him in connection therewith, were presented through the grievance process.
Plaintiff does not deny that he failed to include his allegations against Haase in the formal grievance but points to his November 9, 1999, letter to Deputy Connolly as evidence of a relevant complaint. Even if it were appropriate to consider such informal correspondence as some evidence of appropriate pursuit of an available administrative remedy, there is no evidence that Plaintiff attempted to present these allegations at each of the three required administrative levels and the letter is in any event clearly insufficient to put Haase or the other prison authorities on notice of the claims Plaintiff is seeking to pursue in the instant action. The November 9th letter simply alleges that Haase was present when Blot strip searched Plaintiff for a second time. Similarly, a January 15, 2000, letter allegedly sent by Plaintiff to Superintendent Greiner is devoid of any allegations of Haase's involvement in the alleged November 7, 1999 incident. The evidence of record on the instant motion shows clearly that Plaintiff was quite familiar with the mechanics of the inmate grievance system. See, for example. Exs. C and D to Sedney Decl.; Ex. A to Defs Reply Mem. Because Plaintiff did not present his current claims against Sergeant Haase through the inmate grievance process prior to the commencement of this action, those claims must be dismissed without prejudice. 42 U.S.C.A. § 1997e (West 1993 and Supp. 2003).
Haase also seeks dismissal of the claims against him on the ground that "verbal threats" are not actionable as constitutional violations. Although the PLRA permits a court to dismiss on the merits, without regard to prior exhaustion, a claim that fails to state a claim on which relief can be granted, the Court declines to address the merits of this claim because it is not at all clear "that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Plaintiff alleges that, at least in the November 7, 1999, incident, Haase used verbal intimidation in aid of physical degradation and confinement in an inappropriately cold space. Examination of the merits of this claim must abide the exhaustion of administrative remedies.
42 U.S.C.A. § 1997e(c)(2) (West Supp. 2003).
CONCLUSION
For the foregoing reasons, Defendant Haase's motion for summary judgment is granted to the extent that Plaintiff's claims against Defendant Haase are dismissed without prejudice for failure to exhaust administrative remedies and is denied in all other respects. A final pre-trial conference is hereby scheduled in this matter for November 12, 2003 at 4:30 p.m., and the relevant deadlines in the Court's scheduling order dated May 3, 2002 are modified accordingly.
SO ORDERED.