Perez v. BlotPerez v. Blot
- Reporters:
- , ,
- Before:
- Knapp
Plaintiff Jerry Perez (“Plaintiff’) is currently an inmate at the Auburn Correctional Facility. Plaintiff brought this excessive force action pursuant to
Plaintiff has sought discovery as to,
inter alia,
the various grievance efforts, both formal and informal, which he pursued to exhaust his administrative remedies in regards to that assault as well as any investigations which may have resulted therefrom. However, Defendants refuse to provide discovery beyond that which relates to Plaintiffs formal grievance efforts pursuant to the procedure enumerated in 7 N.Y. COMP. CODES R. & R., tit. 7, § 701,
et seq.,
until we first address their forthcoming motion to dismiss Plaintiffs action on the grounds that he failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act,
Since Plaintiff contends that the discovery he seeks is directly relevant to the issue of whether or not he sufficiently exhausted his administrative remedies (and therefore to Defendants’ forthcoming motion), he requests that, before considering the motion to dismiss, we order Defendants (a) to provide him with all documents related to an investigation purportedly conducted by the Inspector General’s Office of the Department of Correctional Services (“DOCS”) in response to Plaintiffs alleged informal complaints and (b) to allow him to depose DOCS officials with respect to whether Plaintiffs informal complaints satisfied the essential functions of a formal administrative grievance. For the reasons that follow, we hereby grant Plaintiffs request.
BACKGROUND
In May 2000, Plaintiff was an inmate at the Sing Sing Correctional Facility (“Sing Sing”).’ Compl. ¶¶ 3, 6. On May 19, 2000, he was moved from the area of the correctional facility which houses the general prison population to a Special Housing Unit in the “HBC.” Compl. ¶ 6.
While processing him for admission into the HBC, Blot allegedly asked Plaintiff why he was being admitted to that unit. Compl. ¶ 8. When Plaintiff informed him that he had been accused of assaulting another inmate, Blot inquired as to whether Plaintiff knew how inmates who assaulted other inmates were treated at Sing Sing. Id. After Plaintiff failed to respond to this inquiry, Blot purportedly slapped Plaintiff with an open hand across the face without provocation. Compl. ¶ 9. Immediately thereafter, all three Defendants allegedly “inflicted an unprovoked, wanton and malicious assault upon the plaintiff’ by throwing him to the ground, hitting him with a baton, punching him, kicking him, and otherwise physically abusing him. Compl. ¶¶ 10-11.
As a result of this alleged assault, Plaintiff suffered a fracture of the left medial orbital near his eye as well as multiple contusions, abrasions, swelling and other injuries about his head and body. Compl. ¶ 14. He also purportedly suffered emotional distress as a result of the assault. Id.
Plaintiff contends that this assault violated his Eighth and Fourteenth Amendment rights under the United States Constitution. Consequently, on August 8, 2001, he filed this action pursuant to
Plaintiff contends that these complaints and the ensuing investigation purportedly conducted by the Inspector General’s Office satisfied the exhaustion requirement imposed by the Prison Litigation Reform Act regardless of whether or not Plaintiff filed a formal grievance pursuant to the Inmate Grievance Program procedure set forth in 7 N.Y. COMP. CODES R. & R., tit. 7, § 701.7. In order to advance this defense, Plaintiff has sought discovery of, among other things, all documents related to the investigation purportedly conducted by the Inspector General’s Office. Plaintiffs counsel has also indicated that, in response to Defendants’ forthcoming motion to dismiss, it may be necessary to depose various DOCS officials to determine whether, in their view, Plaintiffs less formal complaints satisfied the essential functions of a formal administrative grievance.
In sharp contrast, Defendants contend that Plaintiffs less formal complaints and the ensuing investigation conducted by the Inspector General’s Office do not satisfy the exhaustion requirement and that, accordingly, they are not pertinent to the issue of whether Plaintiff exhausted the appropriate administrative remedies. Consequently, although they are willing to provide discovery with respect to any efforts which Plaintiff may have made to pursue formal administrative grievances regarding the assault, they are unwilling to provide any further discovery beyond that until we have first addressed their forthcoming motion to dismiss Plaintiffs action (if, indeed, any discovery remains necessary after our decision). As Plaintiff asserts that his complaints and the investigation which supposedly ensued therefrom are directly relevant to the issue of whether he satisfied the exhaustion requirement, Plaintiff requests that, before considering the forthcoming motion, we order Defendants (a) to provide him -with all documents related to the investigation conducted by the Inspector General’s Office with respect to the May 19, 2000 assault and (b) to allow him to depose DOCS officials with respect to whether Plaintiffs complaints satisfied the essential functions of a formal administrative grievance.
DISCUSSION
“Ordinarily, plaintiffs pursuing civil rights claims under
The Prison Litigation Reform Act (“PLRA”) provides that “no action shall be brought with respect to prison conditions under
“New York provides an elaborate administrative grievance process for prisoners in New York State correctional facilities.”
Cruz v. Jordan
(S.D.N.Y.1999) 80 F.Supp.2d 109, 117.
See also
Plaintiffs counsel is unsure as to whether Plaintiff ever filed a formal grievance in accordance with the IGP procedure enumerated in 7 N.Y. Comp. Codes R. & R., tit. 7, § 701.7. However, Plaintiff has informed his counsel that he complained about the May 19, 2000 assault less formally to numerous correctional officials, both verbally and in writing, and, according to Plaintiff, the Inspector General’s Office of DOCS conducted an exhaustive internal investigation in response to those complaints. As a result of that investigation, the Inspector General’s Office concluded that some or all of the named defendants had in fact used excessive force. Thereafter, the Inspector General’s Office referred this matter to the New York State Police Bureau of Criminal Investigation, which, upon further investigation, referred the matter to the Westchester County District Attorney’s office for prosecution of the officers.
Although Defendants are willing to provide discovery with respect to the more formal grievance efforts which Plaintiff may have pursued in accordance with the elaborate procedure set forth in 7 N.Y. Comp. Codes R. & R., tit. 7, § 701.1, et seq., they refuse to provide discovery with respect to Plaintiffs less formal complaints to correctional officials about the alleged assault and the ensuing investigation which purportedly resulted therefrom until we first address their forthcoming motion to dismiss. In essence, they contend that such efforts would be insufficient to satisfy the exhaustion requirement imposed by the PLRA and would therefore not be pertinent to the issue of whether Plaintiff exhausted the appropriate administrative remedies.
As Plaintiffs counsel has noted, the relevant administrative process includes both a formal grievance procedure, as enumerated in 7 N.Y. Comp. Codes R. & R., tit. 7, § 701.7, and an expedited, less formal grievance procedure for “harassment”
If the Superintendent determines that the grievance does not represent a bona fide case of harassment, then the grievance is submitted to the Inmate Grievance Resolution Committee for resolution in conformance with the IGP process discussed in Section 701.7. See 7 N.Y. Comp. Codes R. & R., tit. 7, § 701.11(b)(3). If, on the other hand, the Superintendent determines that the grievance does represent a bona fide ease of harassment, he is required either to: (i) initiate an in-house investigation by higher ranking supervisory personnel into the allegations contained in the grievance, or (ii) request an investigation by the Inspector General’s Office or, if the Superintendent determines that criminal activity is involved, by the New York State Police Bureau of Criminal Investigation. See 7 N.Y. Comp. Codes R. & R., tit. 7, § 701.11 (b)(4)(i)-(ii).
Defendants assert that Plaintiff “lodged his grievance directly with the Inspector General” and therefore failed to follow even the expedited procedure discussed above as he purportedly did not submit a “formal grievance at the correctional facility level as contemplated by the provisions of § 701.11.” See April 8, 2002 Singleton Letter at 2-3. However, the merit of that contention is unclear at this early stage in the litigation. Although at least one court has determined that an inmate’s direct complaints to the Inspector General’s office “do not serve to excuse [a] plaintiff from adhering to the available administrative procedures” enumerated in 7 N.Y. Comp. Codes R. & R., tit. 7, § 701.1, et seq., Grey v. Sparhawk (S.D.N.Y. June 23, 2000) 2000 WL 815916, *2, we have not yet been provided with sufficient information to determine whether Plaintiff actually complained directly to the Inspector General’s Office or whether he instead pursued his grievance in accordance with the provisions of Section 701.11 by submitting his allegations to the appropriate correctional authorities.
Indeed, whereas Defendants contend that Plaintiff pursued his grievance solely through the Inspector General’s Office, Plaintiff asserts that he also complained to various “correctional officials” regarding the assault. Pursuant to the expedited procedure for allegations of harassment, an inmate need only “report” the purported harassment “to the immediate supervisor of that employee” who supposedly committed the misconduct in order to trigger the expedited grievance process. 7 N.Y. Comp. Codes R.
&
R., tit. 7, § 701.11(a)(1). Nothing in the relevant regulations indicates that the inmate’s “report” must consist of a formal grievance complaint such as that required pursuant
Accordingly, assuming that Plaintiffs allegations are true, discovery as to his less formal verbal and written complaints to “correctional officials” and the investigation which supposedly ensued therefrom is directly relevant to the question of whether he exhausted his administrative remedies pursuant to the expedited procedure set out in Section 701.11. To the extent that he reported allegations relating to the May 19, 2000 assault to the appropriate officials, he may have satisfied the exhaustion requirement imposed by the PLRA by complying with the expedited process enumerated above. Since an investigation by the Inspector General’s Office is among the very results which may be triggered by a Superintendent’s determination that a grievance represents a bona fide case of harassment, discovery with respect to any such investigation may indicate whether correctional officials interpreted Plaintiffs allegations as a harassment grievance within the meaning of Section 701.11, whether they viewed his allegations as a bona fide case of harassment, and to what extent, if any, Plaintiff and the correctional officials generally followed the procedure which applies to allegations of harassment.
In addition, Plaintiffs requested discovery would be relevant to the issue of whether he exhausted his administrative remedies even if he failed to follow the expedited procedure set forth in Section 701.11. In the past, courts repeatedly held that, where an inmate was incarcerated in a New York State correctional facility, his informal grievance efforts could not satisfy the exhaustion requirement of the PLRA.
See Mills v. Garvin
(S.D.N.Y. Mar.2, 2001) 2001 WL 286784, *3 (plaintiffs letters to prison officials were insufficient to exhaust his administrative remedies and plaintiffs complaint should ordinarily be dismissed where he failed to follow the prescribed grievance procedure);
Laureano v. Pataki
(S.D.N.Y. Sept.29, 2000) 2000 WL 1458807, *2 (plaintiffs letter complaints to various prison employees were insufficient to exhaust his administrative remedies as they did not satisfy Section 701.7);
Noguera v. Hasty
(S.D.N.Y. July 21, 2000) 2000 WL 1011563, *12 n. 23,
report and recommendation adopted in-part
(S.D.N.Y. Mar.12, 2001) 2001 WL 243535 (“The Court notes that simple letter complaints to the Com
However, the relevant regulations state that “[t]he inmate grievance program.. .is intended to supplement, not replace, existing formal or informal channels of problem resolution.” 7 N.Y. Comp. Codes R. & R., tit. 7, § 701.1(a) (emphasis added). Indeed, the regulations provide that “an inmate should seek assistance in resolving a complaint through a guidance unit, program area directly affected, or other existing channels, informal or formal, prior to submitting a formal grievance,” and emphasize that “[a]n inmate should be encouraged to attempt to resolve a problem on his/her own.” Id. 7 N.Y. Comp. Codes R. & R., tit. 7, § 701.3(a) (emphasis added). Accordingly, after the foregoing decisions were issued by courts in this district, the Second Circuit explained that the resolution of a grievance “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.” Marvin v. Goord (2d Cir.2001) 255 F.3d 40, 43 n. 3.
Defendants insist that Marvin is inapplicable to the circumstances here since the inmate in Marvin resolved his grievance informally “at the correctional level ” whereas Plaintiff here supposedly pursued his grievance informally through the Inspector General’s Office. See April 8, 2002 Singleton Letter at 4 (emphasis in the original). However, as we have already discussed, neither party has, as of yet, provided us with sufficient information as to whether Plaintiff submitted his complaints directly to the Inspector General’s Office or whether he also pursued them through officials at the “correctional level.” Indeed, that is exactly the type of information which Plaintiff hopes to discover through the request at issue here in order to advance his defense against Defendants’ contention that he failed to appropriately exhaust his administrative remedies.
In
Marvin,
the Second Circuit explained that the plaintiffs “submissions indicate that he succeeded in overturning the prohibition [in question] informally by
complaining to various correctional officials.” Marvin,
255 F.3d at 43 (emphasis added). As in
Marvin,
the Plaintiff here also contends that he successfully obtained as favorable a resolution to his grievance as possible after he complained about the assault to “correctional officials.” According
If the discovery requested in this instance ultimately supports Plaintiffs allegations, he may be able to establish that he resolved his grievance through precisely the type of informal channels which are permitted under both Marvin and the New York administrative scheme. See Noguera, 2000 WL 1011563 at *12 (finding that a plaintiffs letter complaints to the warden about sexual abuse satisfied the exhaustion requirement since the complaint accomplished “everything that might have happened” if she had written out a more formal complaint and formal procedures were triggered by the letter, thereby “providing an administrative record and obviating any threat of weakening or undermining the administrative scheme”). 1 To the extent that plaintiffs allegations are true, he would seemingly have accomplished much of what he might otherwise have achieved by way of the formal IGP process, as his alleged complaints to correctional officials about the assault purportedly secured the same favorable resolution available to him pursuant to .the procedure enumerated in Section 701 .11. See 7 N.Y. Comp. Codes R. & R., tit. 7, §§ 701.11(b)(3), 701.11(b)(4)(h). Given the specific manner in which his grievance was supposedly resolved and the fact that money damages were unavailable to him through the IGP process, Plaintiff could not have sought a significantly better result and would have had little reason to appeal from such a resolution. Under these unusual circumstances, it would make little sense to demand that Plaintiff jump through the further, elaborate hoops of the IGP procedure. See Camp v. Brennan (3d Cir.2000) 219 F.3d 279, 281 (finding that the plaintiff did not need to jump through any further administrative hoops where his allegations were fully addressed on their merits by the administrative authorities).
The discovery which Plaintiff has requested is therefore directly relevant to, at the very least, the question of whether Plaintiff exhausted his administrative remedies either pursuant to the IGP procedure enumerated in Section 701.11 or through informal channels as permitted under the New York administrative scheme. Accordingly, we grant Plaintiffs request to obtain such discovery
prior
to our consideration of Defendants’ forthcoming motion to dismiss. We note that since we have not yet received sufficient infor
CONCLUSION
For the foregoing reasons, Plaintiffs discovery, request is hereby GRANTED. Defendants are directed to provide Plaintiff with the discovery which relates to his complaints to correctional officials about the May 19, 2000 assault and the investigation into that assault which was purportedly conducted by the Inspector General’s Office.
SO ORDERED.
Notes
. Defendants ask us to ignore the analysis addressing the exhaustion of administrative remedies which Magistrate Judge Peck articulated in the Report and Recommendation set forth in
Noguera v. Hasty
(S.D.N.Y. July 21, 2000) 2000 WL 1011563, as Judge Wood ultimately chose not to adopt that portion of the recommendation which related to Plaintiff‘s informal resolution of her excessive force grievance.
See Noguera v. Hasty
(S.D.N.Y. Mar. 12, 2001) 2001 WL 243535, *1, *3 n. 4. However, Judge Wood chose not to adopt Judge Peck’s analysis regarding Plaintiffs satisfaction of the exhaustion requirement because, after Judge Peck issued his report, the Second Circuit held that the exhaustion requirement did not apply to, among other things, excessive force claims.
See Noguera,
2001 WL 243535 at *4,
citing Nussle v. Wil-lette,
224 F.3d 95 (2d Cir.2000). Accordingly, rather than adopting Judge Peck’s analysis, Judge Wood followed the Second Circuit‘s decision in
Nussle
and held that the plaintiff’s claims were simply not subject to the exhaustion requirement.
See Noguera,
2001 WL 243535 at *4-*5. The Supreme Court recently overturned the Second Circuit’s decision in
Nussle
and held that the exhaustion requirement applied to