OPINION AND ORDER
Pro se plaintiff Richard Graham, along with two other inmates, Jose
Figueroa and William Kanelos, bring suit under 42 U.S.C. § 1983 and
1997 both individually and on behalf of all others similarly situated
against officials and employees of the New York State Department of
Correctional Services ("DOCS") at Fishkill Correctional Facility
("Fishkill") ("defendants"). The Complaint alleges that conditions for
protective custody status inmates in the O, P and Q galleries of the
Special Housing Unit ("SHU") at Fishkill violate plaintiffs'
constitutional rights. The Complaint seeks both monetary damages and
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure,
defendants now move to dismiss the Complaint for failure to state a claim
upon which relief can be granted. For the reasons stated below,
defendants' motion to dismiss is granted, with leave to replead in part.
The facts set forth below are drawn from the Complaint and are
presumed true for purposes of this motion.
In September 1999, Richard Graham, Jose Figueroa and William Kanelos
were protective custody status inmates in the Fishkill SHU.*fn1 Graham
arrived at Fishkill on September 3, 1999, and was placed in Unit Q of the
SHU under protective custody status on September 7, 1999. Complaint
("Compl.") ¶ 16F(a)-(b).*fn2 Graham also met with medical
personnel on September 7, 1999. See id. ¶ 16F(c). He was transferred
to another facility for a court appearance on September 9, 1999, and
subsequently returned to Unit Q on September 16, 1999. See id. ¶
16F(h). After returning to Fishkill, Graham "made known that he didn't
feel well" and that he was concerned he had not received his prescribed
medications for several health conditions. Id. ¶ 16F(j)-(k). Graham
saw a physician on September 21, 1999, and received his medications at
that time. See id. ¶ 16F(i). Graham alleges that he was deprived of
his medications for a total of thirteen days. See id. ¶ 16F(k).
On or about September 9, 1999, Graham met with Lt. Symanowicz to
discuss the conditions of confinement for protective custody status
inmates in the SHU. See Exhibit F to Complaint. On September 17, 1999,
Graham sent a memo to Lt. Symanowicz that confirmed this conversation and
detailed more than twenty-five complaints regarding the conditions in the
SHU. See id. Graham and Lt. Symanowicz met again on September 24, 1999.
See id. On September 26, 1999, Graham sent a second memo to Lt.
Symanowicz regarding this second meeting that contained more than ten
additional complaints regarding confinement conditions.*fn3 See id. On
that same day, plaintiffs Figueroa, Graham and Kanelos signed the
Complaint in this case. The plaintiffs actually filed suit on December
In their Complaint, plaintiffs allege that protective custody inmates
housed in the O, P and Q galleries at Fishkill are subjected to a number
of unconstitutional conditions of confinement. These conditions include
failing to allow those inmates to be out of their cells for the required
amount of time, depriving them of job opportunities, denying access to
religious services, denying prison wages, failing to provide adequate
medical care, limiting the location and content of their meals, and
denying access to the courts. The complete list of allegations consumes
twenty handwritten pages.
II. LEGAL STANDARD
Dismissal of a complaint for failure to state a claim pursuant to Rule
12(b)(6) is proper only where "it appears beyond doubt that the
plaintiff[s] can prove no set of facts in support of [their] claim which
would entitle [them] to relief." Harris v. City of New York,
186 F.3d 243, 247 (2d Cir. 1999). "The task of the court in ruling on a Rule
12(b)(6) motion 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." Cooper v. Parsky, 140 F.3d 433, 440(2d Cir. 1998)
(internal quotation marks and citation omitted). To properly rule on such
a motion, the court must accept as true all material facts alleged in the
complaint and draw all reasonable inferences in the nonmovant's favor.
See Harris, 186 F.3d at 247. Nevertheless, "[a] complaint which consists
of conclusory allegations unsupported by factual assertions fails even
the liberal standard of Rule 12(b)(6)." De Jesus v. Sears, Roebuck &
Co., 87 F.3d 65, 70 (2d Cir. 1996) (internal quotation marks and
However, pro se complaints are held to "less stringent standards than
formal pleadings drafted by lawyers," and are to be construed liberally
on a motion to dismiss. Haines v. Kerner, 404 U.S. 519, 520 (1972).
Thus, a pro se complaint "should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff[s] can prove no
set of facts in support of [their] claim[s] which would entitle
[them] to relief." Hughes v. Rowe, 449 U.S. 5, 10 (1980).
A. Class Certification
Plaintiffs Graham, Figueroa and Kanelos seek to bring this suit as a
class action on behalf of all protective custody status inmates in the
In order to represent a class, a plaintiff must satisfy the
requirements of Rule 23(a)(4) of the Federal Rules of Civil Procedure by
being able to "fairly and adequately protect the interests of the class."
However, "[i]t is well settled in this circuit that pro se plaintiffs
cannot act as class representatives. They do not satisfy the requirements
of Rule 23(a)(4)." McLeod v. Crosson, No. 89 Civ. 1952, 1989 WL 28416, at
*1 (S.D.N.Y. Mar. 21, 1989). See also Phillips v. Tobin, 548 F.2d 408,
412-15 (2d Cir. 1976).
Because plaintiffs are not represented by counsel,*fn4 they may not
act as representatives of a class and must therefore pursue their claims
against defendants individually.*fn5
B. Dismissal Pursuant to 42 U.S.C. § 1997e(a)
Defendants assert that Graham's claims should be dismissed for failure
to exhaust administrative remedies. See Defendants' Memorandum of Law in
Support of their Motion to Dismiss the Complaint ("Def. Mem.") at 7-10.
Graham contends that he exhausted administrative remedies by twice
writing to Lt. Symanowicz detailing his complaints. Copies of that
correspondence were also sent to defendants Selsky, Goord, Perez and
Mazzuca. See Compl. ¶ 12. Defendants argue that letters are
insufficient to constitute exhaustion and that plaintiffs must follow
more formal grievance procedures. See Def. Mem. at 7.
A prisoner must exhaust all available remedies before bringing an
action regarding prison conditions. See Wright v. Dee, 54 F. Supp.2d 199,
204 (S.D.N.Y. 1999). The Prison Litigation Reform Act ("PLRA")
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
42 U.S.C. § 1997e(a).