Wing v. MyersWing v. Myers
- Reporters:
- ,
- Before:
- Kenneth M. Karas
Dusty Alanson James Wing
Fallsburg, NY
Pro se Plaintiff
Jennifer Rose Gashi
Office of the New York State Attorney General
White Plains, NY
Counsel for Defendants Myers, Bowers, and DePaolo
KENNETH M. KARAS, United States District Judge:
Pro se Plaintiff Dusty Alanson James Wing (Plaintiff) filed the instant Complaint (Complaint), pursuant to
Before the Court is State Defendants’ Motion To Dismiss the Complaint pursuant to
I. Background
A. Factual Background
The following facts are drawn from Plaintiff‘s Complaint and are taken as true for the purposes of resolving the instant Motion.
On October 18, 2018, Myers, Bowers, and DePaolo told inmates Freeman and Frazier about a crime of which Plaintiff was accused, so [State Defendants] [could] watch while [Freeman and Frazier] beat [Plaintiff] up. (Compl. 3.) According to Plaintiff, after learning about the crime, Freeman punched [him] in the face, and Frazier punched [him] in the back and chest, while Myers, Bowers, and DePaolo watched. (Id.) Myers also attacked Plaintiff, punch[ing] [him] in the mouth. (Id.)2 The attack took place in the bathroom in G-Y dorm, and Plaintiff does not recall any other witnesses. (Id.)
Plaintiff subsequently went to [M]edical, where a nurse photographed his injuries. (Id.) As a result of the attacks, Plaintiff suffered from a busted lip and bruises on his back, chest, and the left side of his face. (Id.) According to Plaintiff, he told the medical counselors about the attack, but they did not care. (Id. at 5.) Once the photographs of Plaintiff‘s injuries were taken, he was transferred to Sullivan Correctional Facility (Sullivan). (Id. at 3.)
It appears that Plaintiff did not file a grievance because he responded no to questions regarding whether he filed a grievance in the facility where his claims arose or in any other facility. (Id.) Plaintiff elaborates that he did not do so because he was told that if he filed a grievance[,] [he] was going to get beat up again, and [he] was scared. (Id. at 4.) Plaintiff also, however, responded to questions about where he filed a grievance and what happened when he did so, writing that he attempted to file a grievance at the grievance office. (Id.) Plaintiff states both that the grievance office [probably] threw [the grievance] out, and also more affirmatively, the grievance guy threw out [his] grievance. (Id.)
B. Procedural Background
Plaintiff signed the Complaint against Myers, Bowers, DePaolo, Freeman, and Frazier on October 26, 2018. (See Compl. 7.) He was granted in forma pauperis status on December 12, 2018. (Dkt. No. 4.) With leave of the Court, State Defendants moved to dismiss Plaintiff‘s Complaint on May 10, 2019. (Not. of Mot.; State Defs.’ Mem. of Law in Supp. of Mot. To Dismiss (Defs.’ Mem.) (Dkt. No. 27).) Plaintiff did not file an opposition. The Court deems the Motion fully submitted.
A. Standard of Review
The Supreme Court has held that although a complaint does not need detailed factual allegations to survive a motion to dismiss, a plaintiff‘s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration and quotation marks omitted). Indeed,
In considering State Defendants’ Motion To Dismiss, the Court is required to accept as true all of the factual allegations contained in the [C]omplaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (same). And, the Court must draw[] all reasonable inferences in favor of the plaintiff. Daniel v. T & M Prot. Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie‘s Int‘l PLC, 699 F.3d 141, 145 (2d Cir. 2012)). Where, as here, a plaintiff proceeds pro se, the Court must construe[] [his complaint] liberally and interpret[] [it] to raise the strongest arguments that [it] suggest[s]. Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (per curiam) (quotation marks omitted). However, the liberal treatment afforded to pro se litigants does not exempt a pro se party from compliance with relevant rules of procedure and substantive law. Bell v. Jendell, 980 F. Supp. 2d 555, 559 (S.D.N.Y. 2013) (quotation marks omitted); see also Caidor v. Onondaga County, 517 F.3d 601, 605 (2d Cir. 2008) ([P]ro se litigants generally are required to inform themselves regarding procedural rules and to comply with them. (italics and quotation marks omitted)).
Generally, [i]n adjudicating a
B. Analysis
1. Applicable Law
State Defendants argue that Plaintiff‘s § 1983 claim is barred because he failed to exhaust his administrative remedies under the Prison Litigation Reform Act (PLRA). (Defs.’ Mem. 3–8.) Failure to exhaust administrative remedies is an affirmative defense under the PLRA, not a pleading requirement. Accordingly, inmates are not required to specially plead or demonstrate exhaustion in their complaints. However, a district court still may dismiss a complaint for failure to exhaust administrative remedies if it is clear on the face of the complaint that the plaintiff did not satisfy the PLRA exhaustion requirement. Williams v. Corr. Officer Priatno, 829 F.3d 118, 122 (2d Cir. 2016) (citations and quotation marks omitted).
The PLRA provides that [n]o action shall be brought with respect to prison conditions under [§] 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.
Prisoners in the custody of [DOCCS] must exhaust all levels of the Inmate Grievance Program (‘IGP‘) process even if they do not receive a response from the Inmate Grievance Resolution Committee (‘IGRC‘) or superintendent. See Little v. Mun. Corp., City of New York, No. 12-CV-5851, 2017 WL 1184326, at *11 (S.D.N.Y. Mar. 29, 2017) (The IGP provides a clear timeline for appealing grievances to the [Central Office Review Committee (‘CORC‘)], which applies even when the prisoner does not receive a timely decision from the IGRC or a superintendent. [The] [p]laintiff therefore had an unimpeded path to the CORC, notwithstanding his claims that the . . . grievance clerk failed to process his complaint and that the . . . superintendent ignored his appeal. (citation omitted) (quoting Dabney v. Pegano, 604 F. App‘x 1, 4–5 (2d Cir. 2015))). If a plaintiff does not receive a response from the IGRC, he normally must file an appeal with the prison superintendent and then with the CORC to fully exhaust his grievance. Indeed, the IGP explicitly states that matters not decided within the time limits may be appealed to the next step.
[(1)] it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates[;] . . .
[(2)] an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use. In this situation, some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it[;] . . . [or]
[(3)] prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.
Id. at 1859–60 (citations omitted). The Second Circuit recently noted that the three circumstances discussed in Ross do not appear to be exhaustive, but declined to opine on what other circumstances might render an otherwise available administrative remedy actually incapable of use. Williams, 829 F.3d at 123 n.2.
A plaintiff need not plead that one of these three circumstances exists or that he did in fact exhaust his administrative remedies, because, as noted, the [f]ailure to exhaust administrative remedies is an affirmative defense under the PLRA, not a pleading requirement. Id. at 122. Defendants bear the burden of proving that Plaintiff failed to exhaust available administrative remedies. See McCoy v. Goord, 255 F. Supp. 2d 233, 248 (S.D.N.Y. 2003) ([The] defendants bear the burden of proof and prisoner plaintiffs need not plead exhaustion with particularity.); see also Williams, 829 F.3d at 122 ([I]nmates are not required to specially
a. Exhaustion of Administrative Remedies
Plaintiff admits that he did [not] file a grievance in the . . . correctional facility where [his] claim(s) arose and did [not] file a grievance . . . at any other . . . correctional facility. (Compl. 4.) As such, Plaintiff did not exhaust all steps of the grievance process. Plaintiff also alleges, however, that his grievance was probably thrown out, suggesting that he may have attempted to file at some point. (Id.) Even if Plaintiff did so, the IGP still requires Plaintiff to file a subsequent appeal with the prison superintendent or to the CORC, whether he received a response to his original grievance or not. See Medina v. Kaplan, No. 16-CV-7223, 2018 WL 797330, at *5 (S.D.N.Y. Feb. 8, 2018) (Prisoners in the custody of DOCCS must exhaust all levels of the [IGP] process[,] even if they do not receive a response from the [IGRC] or superintendent. (citing Dabney, 604 Fed. App‘x at 4–5 (The IGP provides a clear timeline for appealing grievances to the [CORC], which applies even when the prisoner does not receive a timely decision from the IGRC or a superintendent.))). Thus, Plaintiff‘s conclusory allegation does not excuse him from the exhaustion requirement. Garcia v. Heath, No. 12-CV-4695, 2013 WL 3237445, at *7 (S.D.N.Y. June 25, 2013) (finding the plaintiff‘s argument that his grievance was thrown away to be merely conclusory, and stating [w]hether [d]efendants ignored [p]laintiff‘s grievances, tore them up, or fed them to the dog is of no moment—none of these things ‘prevented’ [the] [p]laintiff from filing an appeal); see also Belile v. Griffin, No. 11-CV-92, 2013 WL 1776086, at *8 (N.D.N.Y. Feb. 12, 2013) ([The] [p]laintiff‘s mere threadbare allegations that his grievances were . . . discarded . . . are insufficient to excuse his failure to comply with the IGP. (citations omitted)).
Additionally, when the period between the date of the alleged incident and the filing of the complaint indicates that an inmate could not have exhausted in that timeframe, courts have held that failure to exhaust is clear from the face of the complaint. Miller v. Annucci, No. 17-CV-4698, 2019 WL 4688539, at *12 (S.D.N.Y. Sept. 26, 2019) (collecting cases). Such determinations are due to the timeline of the IGP framework. For example, an inmate has 21 days to file a grievance after an alleged incident occurs, and IGRC representatives have up to 16 days to resolve it, schedule a hearing, or make a recommendation to the superintendent.
b. Availability of Administrative Remedies
Although Plaintiff did not exhaust his administrative remedies, the Court cannot determine from the face of the [C]omplaint, id., whether these remedies were in fact available to Plaintiff. As when non-exhaustion is not clear on the face of a complaint, dismissal is similarly inappropriate when one of the [] exceptions may well be applicable. McIntosh v. United States, No. 14-CV-7889, 2016 WL 1274585, at *13 n.15 (S.D.N.Y. Mar. 31, 2016) (citation omitted). The circumstances surrounding whether Plaintiff filed a grievance and whether the grievance process was available to him are unclear. Plaintiff indicates that he did not file a grievance because he was threatened with attack if he did so. (Compl. 4.) He also, however, states that the grievance office probably threw [] out his grievance, and, more affirmatively, that the grievance guy threw out [his] grievance. (Id.) Lastly, Plaintiff alleges that he was transferred to Sullivan soon after the incident. (Id. at 3.) It is therefore also unclear where Plaintiff was threatened and where he may have attempted to file a grievance.
State Defendants are correct that a generalized fear of retaliation, (Defs.’ Mem. 9), will not render administrative remedies unavailable. See Little, 2017 WL 1184326, at *12 (finding allegations of generalized fear are insufficient to excuse [the plaintiff‘s] failure to exhaust (citations omitted)); Brown v. Napoli, 687 F. Supp. 2d 295, 297 (W.D.N.Y. 2009) (finding the plaintiff failed to allege any facts to support his claimed [f]ear for [his] personal safety and retaliation by correctional staff); Harrison v. Stallone, No. 06-CV-902, 2007 WL 2789473, at *5 (N.D.N.Y. Sept. 24, 2007) ([A] general fear of retaliation is not sufficient to excuse the
Administrative remedies may be deemed unavailable where ‘prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation,’ including where ‘officials misled or threatened individual inmates so as to prevent their use of otherwise proper procedures.’ White v. Westchester County, No. 18-CV-730, 2018 WL 6726555, at *7 (S.D.N.Y. Dec. 21, 2018) (citation and italics omitted) (quoting Ross, 136 S. Ct. at 1860). Plaintiff does suggest, even if barely, that he received a specific threat that appears to be related to the initial attack, as he was allegedly told that he would get beat up again if he filed a grievance. Cf. Medina, 2018 WL 797330, at *5 (determining that the threat alleged by the plaintiff was insufficient to render the grievance process unavailable because, inter alia, there [was] no allegation that the threat was even related to her grievance). Although a full record may show otherwise, it would be premature to dismiss the Complaint at this stage, when it is possibl[e] [that] administrative remedies [were rendered] unavailable to Plaintiff. Shaw v. Ortiz, No. 15-CV-8964, 2016 WL 7410722, at *5 (S.D.N.Y. Dec. 21, 2016) (finding that when the plaintiff alleged that correction officers must have been misplacing [his] mail, the court could not determine whether administrative remedies were
Although courts may frequently convert[] defendants’ motions to dismiss to motions for summary judgment on the limited issue of administrative exhaustion, Garvin v. Rivera, No. 13-CV-7054, 2015 WL 876464, at *5 (S.D.N.Y. Feb. 28, 2015) (collecting cases), it is also
Accordingly, the Court denies State Defendants’ instant Motion but orders the Parties to conduct limited discovery solely on the issue of administrative exhaustion, to be completed within 60 days of the date of this Opinion. The Parties must focus on whether and when Plaintiff filed a grievance, the circumstances surrounding the alleged threat (including who made the threat, and when the threat might have been made), and whether administrative remedies were available to Plaintiff, both at Woodbourne and Sullivan.
2. Inmate Defendants
Defendants Freeman and Frazier are both inmates at Woodbourne. Although Plaintiff alleges that Freeman and Frazier physically assaulted him and were involved in the attack, the Court must dismiss Plaintiff‘s claims pertaining to these inmates.
A district court shall dismiss an in forma pauperis action at any time where it determines that the action is (i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.
In order to bring an action under
III. Conclusion
For the foregoing reasons, State Defendants’ Motion To Dismiss is denied. The Court orders the Parties to conduct limited discovery on the question of administrative exhaustion, to be completed within 60 days of the date of this Opinion. However, the Court dismisses with prejudice Plaintiff‘s claims against Defendant Brian Freeman and Defendant DJ Frazier under
SO ORDERED.
Dated: December 11, 2019
White Plains, New York
KENNETH M. KARAS
UNITED STATES DISTRICT JUDGE