High v. Switz, 2018 WL 3736794

APPEARANCES:

JAVON HIGH
Plaintiff, Pro Se
16-R-2525
Queensboro Correctional Facility
47-04 Van Dam Street
Long Island City, NY 11101

HON. BARBARA D. UNDERWOOD
Attorney General of the State of New York
Attorney for Defendant
The Capitol
Albany, NY 12224

OF COUNSEL:

ERIK BOULE PINSONNAULT, ESQ.

REPORT-RECOMMENDATION and ORDER

On September 25, 2017, pro se Plaintiff Javon High commenced this action pursuant to 42 U.S.C. § 1983, asserting claims arising from his confinement at both Wyoming Correctional Facility and Ulster Correctional Facility, while in the custody of the Department of Corrections and Community Supervision (DOCCS). Dkt. No. 1, Compl. In his Complaint, Plaintiff alleges that he suffers from chronic, severe pain, for which he was prescribed certain medications. Compl. at p. 3.¹ Plaintiff alleges that while at Ulster, he was seen by P.A. Switz, who told Plaintiff that he would not be getting the physical therapy or prescribed medications at Ulster, and that he could attempt to when he got to his designated facility, which would not be for a month or two. Id. at pp. 4-5. Plaintiff then went thirty-five days with severe pain. Id. at p. 6. Plaintiff alleges continuing issues related to his pain and treatment after he was transferred to Wyoming.² Id. at pp. 6-19. Remaining in this District are Plaintiff‘s claims arising out of his confinement at Ulster, which are only those against Defendant Genevieve Switz.

Presently before the Court is Defendant‘s Motion to Dismiss Plaintiff‘s Complaint on the basis that Plaintiff failed to exhaust his administrative remedies before filing this action. Dkt. No. 13, Def.‘s Mot. to Dismiss. Plaintiff has opposed the Motion. Dkt. No. 17, Pl.‘s Opp. Defendant has filed a reply. Dkt. No. 18, Def.‘s Reply. Plaintiff has filed an additional submission in opposition. Dkt. No. 19, Pl.‘s Supp. Opp.³

The Court finds that Plaintiff failed to exhaust his administrative remedies, but that Plaintiff has demonstrated that the lack of exhaustion should be excused. The Court therefore recommends that Defendant‘s Motion be denied.

I. LEGAL STANDARD

On a motion to dismiss, the allegations of the complaint must be accepted as true. See Cruz v. Beto, 405 U.S. 319, 322 (1972). The trial court‘s function is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof. Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984)).

The court is bound to give the plaintiff the benefit of every reasonable inference to be drawn from the well-pleaded allegations of the complaint. See Retail Clerks Int‘l Ass‘n, Local 1625, AFL-CIO v. Schermerhorn, 373 U.S. 746, n.6 (1963). Nevertheless, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Therefore, [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. (citation omitted).

A motion to dismiss pursuant to Rule 12(b)(6) may not be granted so long as the plaintiff‘s complaint includes enough facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. at 697. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. at 678. This plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Id. (internal citation omitted). In this respect, to survive dismissal, a plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level. ATSI Commc‘ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 440 U.S. at 555). Thus, in spite of the deference the court is bound to give to the plaintiff‘s allegations, it is not proper for the court to assume that the [plaintiff] can prove facts that [he or she] has not alleged, or that the defendants have violated . . . laws in ways that have not been alleged. Assoc. Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). The process of determining whether a plaintiff has nudged [his] claims . . . across the line from conceivable to plausible, entails a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. Ashcroft v. Iqbal, 556 U.S. at 679-80.

Where, as here, the complaint was filed pro se, it must be construed liberally with special solicitude and interpreted to raise the strongest claims that it suggests. Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (internal quotation marks omitted) (citation omitted). Nonetheless, a pro se complaint must state a plausible claim for relief. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009).

Generally, in determining a 12(b)(6) motion, the court may only consider those matters alleged in the complaint, documents attached to the complaint, and matters to which the court may take judicial notice[,] as well as documents incorporated by reference in the complaint. Spence v. Senkowski, 1997 WL 394667, at *2 (N.D.N.Y. July 3, 1997) (citing Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir. 1991)); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991) (citing FED. R. CIV. P. 10(c)).

II. EXHAUSTION

A. Exhaustion Procedure

The Prison Litigation Reform Act (PLRA) provides, in pertinent part, that [n]o 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). The Supreme Court has held 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. Porter v. Nussle, 534 U.S. 516, 532 (2002) (citation omitted). Exhaustion in prisoner cases covered by § 1997e(a) is mandatory. Id. at 524; Ross v. Blake, 136 S. Ct. 1850, 1856 (2016) (stating that the mandatory language of § 1997e(a) forecloses judicial discretion to craft exceptions to the requirement). Furthermore, § 1997e(a) requires proper exhaustion, which means using all steps of the administrative process and complying with deadlines and other critical procedural rules. Woodford v. Ngo, 548 U.S. 81, 93 (2006). The defendant bears the burden of proving that the administrative remedies available to the plaintiff were not exhausted prior to the initiation of a civil action. Howard v. Goord, 1999 WL 1288679, at *3 (E.D.N.Y. Dec. 28, 1999).

In New York, the administrative remedies consist of a three-step Inmate Grievance Program (IGP). First, a grievance is submitted to the Inmate Grievance Resolution Committee (IGRC), a committee comprised of both inmates and facility employees. N.Y. COMP. CODES R. & REGS. tit. 7, § 701.5(b). An inmate must submit a grievance within 21 calendar days of the alleged occurrence. Id. at § 701.5(a). An inmate may request an extension of the time limit within forty-five days of the date of the alleged occurrence. Id. at § 701.6(g). The IGRC reviews and investigates the formal complaint and then issues a written determination. Id. at § 701.5(b). Second, upon appeal of the IGRC decision, the superintendent of the facility reviews the IGRC‘s determination and issues a decision. Id. at § 701.5(c). Finally, upon appeal of the superintendent‘s decision, the Central Office Review Committee (CORC) makes the final administrative determination. Id. at § 701.5(d). Only upon exhaustion of all three levels of review may a prisoner seek relief in federal court. Bridgeforth v. Bartlett, 686 F. Supp. 2d 238, 239 (W.D.N.Y. 2010) (citing, inter alia, Porter v. Nussle, 534 U.S. at 524); see also Neal v. Goord, 267 F.3d 116, 121 (2d Cir. 2001), overruled on other grounds by Porter v. Nussle, 534 U.S. 516.

B. Plaintiff‘s Failure to Exhaust Administrative Remedies

In this case, Plaintiff admits that the grievance procedure was not complete when he filed the Complaint because he had not received a response from CORC. Compl. at pp. 20-21. Plaintiff filed his initial grievance on January 20, 2017. Id. at p. 20. He received a response from IGRC on January 24, 2017, and forwarded his appeal to the Superintendent. Id. The Superintendent then issued a response on January 31, 2017. Id. On February 6, 2017, Plaintiff filed his appeal to CORC. Id. Per the regulations, CORC had thirty days to respond to the appeal. Id. On August 25, 2017, after not hearing from CORC, Plaintiff sent CORC a letter asserting that CORC had exceeded the timeline and that he had therefore exhausted his administrative remedies, and would be filing a claim in Court. Id. at pp. 20-21. When Plaintiff prepared his Complaint, on September 12, 2017, he had still not received any response from CORC. Id. Only after filing the Complaint did Plaintiff receive a final response from CORC. Pl.‘s Supp. Opp. at p. 3 & Def.‘s Reply at pp. 1-2 (indicating response from CORC was received in February 2018).

It is clear from the face of Plaintiff‘s Complaint that he did not exhaust his administrative remedies. The fact that his CORC appeal was decided after the filing of his Complaint is insufficient to cure Plaintiff‘s failure to exhaust; filing an Amended Complaint at this time would also not correct this fundamental deficiency. Gizewski v. New York State Dep‘t of Corr. & Cmty. Supervision, 2016 WL 3661434, at *13 (It is well established that [r]eceiving a decision from CORC after filing a federal lawsuit does not satisfy the PLRA‘s requirement that administrative remedies be exhausted before filing suit, and any claim not exhausted prior to commencement of the suit must be dismissed without prejudice.) (internal quotation marks omitted) (citations omitted).

The Court will discuss below whether Plaintiff‘s contentions may state a valid excuse for his failure to exhaust his administrative remedies.

C. Whether Plaintiff‘s Failure to Exhaust Administrative Remedies May be Excused

A prisoner‘s failure to exhaust administrative remedies may nonetheless be excused if remedies were unavailable to the inmate. Ross v. Blake, 136 S. Ct. at 1858. As the Supreme Court recently stated, [a]n inmate . . . must exhaust available remedies, but need not exhaust unavailable ones. Id. The Court provided three potential circumstances in which administrative remedies may be unavailable: (1) where the administrative procedure technically exists but operates as a dead end - with officers unable or consistently unwilling to provide any relief to aggrieved inmates; (2) where the administrative scheme is so opaque that it becomes, practically speaking, incapable of use; and (3) where prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation. Id. at 1859-60.

In his Complaint and opposition papers, Plaintiff‘s main contention is that administrative remedies were unavailable to him because he did not receive a response from CORC for over seven months, and that there are no instructions on how to proceed with a grievance if no response is received from CORC. Pl.‘s Opp. at p. 9 (DOCCS policy has no re[c]ourse, does not inform nor direct what the next step would be if CORC does not render a decision. Leaving inmates to bel[ie]ve that if they receive no decision after the (30) thirty day period allowed in th[eir] own policy then they have exhausted remedies. Fac[t]ually and evident[i]ally, DOCCS simply does not state what we are to do after the thirty day timeline has expired. Certainly they cannot just leave the door open. . . .); see also Compl. at pp. 20-21; Pl.‘s Supp. Opp. Defendant contends that an inmate must receive a response from CORC before filing a suit, and that a delay in receipt of a CORC decision beyond the thirty days proscribed by statute does not excuse an inmate‘s failure to exhaust his administrative remedies. Def.‘s Reply.

Courts within the Second Circuit are split regarding whether a failure to respond by CORC constitutes unavailability excusing a plaintiff‘s failure to exhaust. Compare Ford v. Smith, 2014 WL 652933, at *3 (N.D.N.Y. Feb. 19, 2014) (finding plaintiff‘s failure to exhaust was not excused where CORC failed to issue a determination for six months) and Lewis v. Hanson, 2017 WL 4326084, at *3 (N.D.N.Y. Sept. 28, 2017) with Rossi v. Fischer, 2015 WL 769551 (S.D.N.Y. Feb. 24, 2015) (collecting cases deeming administrative remedies unavailable when officials failed to timely respond to a grievance), Peoples v. Fisher, 2012 WL 1575302, at *6 (S.D.N.Y. May 3, 2012) (When a prisoner complies with all of the administrative requirements and makes a good-faith effort to exhaust, he should not be denied the opportunity to pursue his grievance in Federal Court simply because the final administrative decision maker has . . . neglected . . . to issue a final administrative determination.), and Rodriguez v. Reppert, 2016 WL 6993383 (W.D.N.Y. Nov. 30, 2016).

Here, Plaintiff filed his grievance with the IGRC; upon receiving an unfavorable determination, he appealed it to the Superintendent, and then appealed the Superintendent‘s determination to CORC. Compl. at pp. 20-21. The final step of the grievance procedure provides that CORC shall review the appeal and render a determination within 30 days from the time the appeal was received. N.Y. COMP. CODES R. & REGS. tit. 7, § 701.5(d)(2). At the preliminary stages of the procedure, the regulations provide an avenue for a grievant to further pursue a grievance that is not timely decided: Absent [an] extension [on a time limit], matters not decided within the time limits may be appealed to the next step. Id. at § 701.6(g). However, the third and final step in the grievance procedure is appeal to the central office review committee. Id. at § 701.5(d). At this level, there is no instruction on what a grievant is to do if he or she has appealed to the CORC, the final step, and has not received a response. Id. at § 701.6(g)(1)(b)(ii). As such, these regulations do not describe a mechanism for appealing or advancing a grievance when a grievant does not receive a response from CORC, as there is no next step to which a grievant may appeal. Williams v. Corr. Officer Priatno, 829 F.3d 118, 124 (2d Cir. 2016).

In the case of Williams v. Corr. Officer Priatno, the plaintiff had submitted a grievance but never received a response; he then filed a lawsuit without taking any further formal action regarding his grievance, believing it had never actually been filed by the special housing unit correction officer. 829 F.3d at 120-21. The Second Circuit found the grievance procedure was unavailable under Ross, meaning that the administrative remedy, although officially on the books, is not capable of use to obtain relief. Id. at 123. The Court found that, even though the plaintiff could have technically appealed his grievance, [t]he regulations simply do not contemplate the situation in which [the plaintiff] found himself, making it practically impossible for him to ascertain whether and how he could pursue his grievance. Id. at 124. As such, the Second Circuit found that, under Ross, the grievance procedures that were technically available to [plaintiff] are so opaque and confusing that they were, practically speaking, incapable of use. Id. at 126 (quoting Ross v. Blake, 136 S. Ct. at 1859).

Similarly, here, while the regulations at the preliminary stages contemplate a next step for a grievant to take in the event he does not receive a response, there is no direction on any action a grievant may take if he does not receive a response from CORC. Indeed, the regulations give no guidance whatsoever regarding what a grievant should do in this circumstance. Id.

Defendant cites to Gizewski for the proposition that even if a grievant does not receive a response to a grievance from CORC, the failure to exhaust is not excusable. In Gizewski, however, there was an administrative error in filing the grievant‘s appeal with CORC and Plaintiff never received a receipt from filing with CORC; the regulations explicitly provide a mechanism for confirming that an appeal has been properly filed if a grievant does not receive a receipt. As such, there was specific direction in the procedures for the grievant to follow. Gizewski v. New York State Dep‘t of Corr. & Cmty. Supervision, 2016 WL 3661434, (N.D.N.Y July 5, 2016). As the Court there summarized:

Although the Court is sympathetic to the fact that it was the inmate grievance office that failed to transmit Plaintiff‘s appeal to CORC until five months after he had filed it, Plaintiff is also at fault for not taking any further action during this time period. More specifically, 7 N.Y.C.R.R. § 701.5(d)(3)(i) states that [i]f a grievant does not receive a copy of the written notice of receipt [by CORC] within 45 days of filing an appeal, the grievant should contact the IGP supervisor in writing to confirm that the appeal was filed and transmitted to CORC.

Id. at *13.

The Second Circuit Court of Appeals affirmed Chief Judge Suddaby‘s dismissal of Gizewski‘s Complaint. Gizewski v. New York State Dep‘t of Corr. & Cmty. Supervision, 692 Fed. Appx. 668 (2d Cir. 2017). In doing so, however, the Circuit noted that, even if we assume arguendo that the long delay occasioned in part by clerical error constituted constructive denial, there was no genuine issue of material fact because the issues raised on that final administrative appeal to CORC pertained to requests for items that had already been provided to the plaintiff as part of a reasonable accommodation. Id. at 670. Therefore, the Second Circuit did not and has not decided the precise issue raised on this Motion - a claim of failure to exhaust where the plaintiff had taken all steps he could to fulfill the last step of the appeal process; where CORC had neglected to respond, not just during the thirty day time limit, but for a period of numerous months thereafter; where CORC had further neglected to respond when Plaintiff wrote to CORC regarding the status of his appeal; and where CORC had only ultimately decided the appeal a year later, after the present Motion to Dismiss had been filed. In the Court‘s view, and under the hopefully unique facts of this case, Plaintiff‘s failure to exhaust aligns more with Williams than with Gizewski. [A]fter the CORC neglected to decide [the appeal], administrative remedies were no longer available to Plaintiff. Rodriguez v. Reppert, 2016 WL 6993383, at *1.

Accordingly, for the foregoing reasons, the Court recommends that Defendant‘s Motion be denied based upon a finding that Plaintiff‘s failure to exhaust is excused.

III. CONCLUSION

For the reasons stated herein, it is hereby

RECOMMENDED, that Defendant‘s Motion to Dismiss (Dkt. No. 13) be denied; and it is further

ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order upon the parties to this action.

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14)⁴ 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 FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec‘y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72 & 6(a).

Date: July 9, 2018
Albany, New York

Daniel J. Stewart

U.S. Magistrate Judge

Notes

1

When referring to Plaintiff‘s submissions, the Court will cite to the page numbers automatically assigned by the Court‘s Case Management Electronic Case Files (CM/ECF) System because they are often unnumbered or not numbered sequentially.

2

The claims regarding Plaintiff‘s treatment at Wyoming were severed and transferred to the Western District of New York upon initial review of the Complaint. Dkt. No. 8.

3

In his opposition filings, Plaintiff has included allegations that were not included in his Complaint. See Pl.‘s Opp. at pp. 5-6. Federal Rule of Civil Procedure 12(d) provides that if matters outside the pleadings are presented to and not excluded by the court on a motion to dismiss, the motion must be treated as one for summary judgment under Rule 56. FED. R. CIV. P. 12(d). The Court agrees with Defendant that Plaintiff‘s allegations that he was prevented from filing grievances should not be considered on a motion to dismiss as they are outside the pleadings. See Def.‘s Reply at p. 2. Because a determination as to exhaustion can be made based on the face of the Complaint, the Court declines to convert the Motion to one for summary judgment, and will exclude and not consider the extrinsic evidence submitted by the parties.

4

If you are proceeding pro se and are served with this Order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the order was mailed to you to serve and file objections. FED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. FED. R. CIV. P. 6(a)(1)(C).

Case Details

Case Name: High v. Switz

Court Name: District Court, N.D. New York

Date Published: Jul 9, 2018

Citations: 2018 WL 3736794; 2018 U.S. Dist. LEXIS 114403; 9:17-cv-01067

Docket Number: 9:17-cv-01067

Court Abbreviation: N.D.N.Y.