The opinion of the court was delivered by: VICTOR Marrero, United States District Judge
Plaintiff Michael Indelicato ("Indelicato"), appearing pro se, brings
this action for injunctive relief and monetary damages under
42 U.S.C. § 1983 and the principles enunciated in Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1999). Indelicato alleges that certain corrections officers at the New
York Metropolitan Correctional Center ("MCC") violated his constitutional
rights on September 14, 2000 by placing him on "refusal status"*fn1 when
he declined to pay an increased contribution to the Inmate Financial
Responsibility Program ("IFRP"), 29 C.F.R. § 525.10-.11. (See Compl.
Defendants Hector Suarez, Indelicato's case manager; Christine Dynan,
the Case Manager Coordinator; and Donald Parks, the Prison Warden
(collectively "Defendants"), move for dismissal pursuant to Federal Rule
of Civil Procedure 12(c) on the grounds that Indelicato failed to: (1)
exhaust his administrative remedies, as required by the Prison Litigation
Reform Act of 1995 ("PLRA"), 42 U.S.C. § 1997 (e)(a), prior to
filing his claim; (2) adequately plead a claim under Bivens and (3)
exhaust his administrative remedies, as required by the Federal Tort
Claims Act ("FTCA"), 28 U.S.C. § 2675 (a), to the extent that
Indelicato's claim can be construed as a claim under that statute.
Defendants also move to amend their answer to the complaint to include an
affirmative defense of qualified immunity for defendants Suarez and
Dynan. Indelicato moves for summary judgment pursuant to Federal Rule of
Civil Procedure 56(c). For the reasons set forth below, Indelicato's
motion is denied and Defendants' motions are granted.
The IFRP is designed to help inmates pay off their outstanding debts.
See 29 C.F.R. § 525.10-.11. In the program, prison staff help inmates
develop financial plans and monitor the inmates' progress in meeting
their financial obligations. Id. On September 13, 2000, Suarez and Dynan
informed Indelicato that unless he increased his monthly contributions to
the IFRP, he would be placed on "retinal status." (Compl. §§
IV(1)-(3).) Indelicato objected, claiming that rather than refusing to
participate in the program, he was merely refusing to pay the newly
increased amount. (Compl. § IV.) The following day, Indelicato was
again informed both in person and in writing that if he did not pay the
new amount, he would be placed on "refusal status." (Id. at § IV(1),
In an effort to pursue the inmate remedy process, Indelicato asserts
that he requested an Administrative Remedy Request Form from Suarez three
times but never received one. (Compl. §§ II, V(e).) Suarez told him to
get the form from his unit counselor, who was away for two weeks.
(Plaintiff's Answers to Interrogatories and Request For Documents By
Defendants ("Pl.'s Answers") ¶ 8(e), attached to Plaintiff's
Declaration, dated April 4, 2002 ("Pl.'s Decl."), Ex. C.) Indelicato
then commenced this action, filing a complaint dated September 16, 2000.
He allegedly tried to submit the administrative remedy form again on
February 11, 2001, after he was transferred to the Elkton BOP facility,
but claims that his unit counselor refused to file the form because she
was trying to work out an informal resolution. (Plaintiff's Memorandum in
Opposition of the Defendant's Motion for Judgment on the Pleadings ("Pl.'s
Mem.") at 4-5.) He subsequently submitted the form on February 5, 2002,
after he was transferred to the BOP's Metropolitan Detention Center in
When examining a motion for judgment on the pleadings, the Court must
accept all well-pleaded allegations of the non-movant as true and draw
all reasonable inferences in his favor. See Sheppard v. Beerman,
94 F.3d 823, 827 (2d Cir. 1996). Granting such a motion is proper only
when it "appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief." Id.
Because Indelicato is acting pro se in this matter, the court must
"construe the complaint liberally such that the strongest possible
argument is raised" in his favor. Richardson v. Hillman, No. 00 Civ.
8995, 2002 WL 745579, at *3 (S.D.N.Y Apr. 18, 2002); see also Soto v.
Walker, 44 F.3d 169, 173 (2d Cir. 1995). Moreover, in deciding a motion
to dismiss involving a pro se plaintiff, the court may look beyond the
complaint to the plaintiff's opposition papers. Pagan v. New York State
Div. of Parole, No. 98 Civ. 5840, slip op., 2002 WL 398682, at *3
(S.D.N.Y. Mar. 13, 2002). Finally, when deciding such a motion, the court
may consider any documents incorporated into a complaint by reference or
upon which the plaintiff relied in drafting his pleadings. See Cortec
Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991).
B. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES PRIOR TO
FILING A BIVENS CLAIM
Defendants move to dismiss this action because Indelicato failed to
exhaust his administrative remedies before filing a complaint in this
Court. The PLRA provides that "[n]o action shall be brought with respect
to prison conditions under . . . Federal law, by a prisoner . . . until
such administrative remedies as are available are exhausted."
42 U.S.C. § 1997 (e)(a). In Porter v. Nussle, ___ U.S. ___, 122
S.Ct. 983, 992 (2002), the Supreme Court held that the PLRA's exhaustion
requirement applies to all inmate suits related to prison conditions.
This requirement extends to cases, such as this one, where a plaintiff
seeks a remedy not available through the administrative process, such as
monetary damages. See Booth v. Churner, 532 U.S. 731, 733-34 (2001)
(holding that exhaustion is required under the PLRA even if the plaintiff
seeks only money damages and money damages are not available as relief).
The purpose of the exhaustion requirement is to improve prison
administration, filter out frivolous claims, and clarify the contours of
controversies for cases that are ultimately brought to court. Porter, 122
S.Ct. at 988.
Indelicato does not allege that he completed the ARP's four steps
before filing his complaint in this Court.*fn2 Rather, Indelicato
contends that he exhausted all of his available remedies after he
completed step one, because the grievance form required in step two was
not available to him. (Compl. ¶¶ 2, v(e); Pl.'s Mem. at 4-5.) An
inmate may defeat a motion to dismiss even if he has not technically
exhausted his administrative remedies when he has made a "reasonable
attempt" to do so, "especially where it is alleged that corrections
officers failed to file the inmate's grievances or otherwise impeded or
prevented his efforts." O'Connor v. Featherston, No. 01 Civ. 3251, slip
op., 2002 WL 818085, at *2 (S.D.N.Y. Apr. 29, 2002). The question before
this Court, therefore, is whether Indelicato made a "reasonable effort"
to exhaust his administrative remedies before filing his claim.
Indelicato claims that: (1) he made a reasonable effort by requesting
the step-two grievance form three times; and (2) because his requests
were denied, he had no available administrative remedies.*fn3 Inmates
who have made significant efforts to obtain administrative relief have
exhausted their administrative remedies, even when they have not pursued
the proper procedure. See O'Connor, 2002 WL 818085, at *2-3 (holding that
plaintiff who was denied requests for forms by unhelpful prison officials
but went on to write letters, file and appeal a FOIA request, and make
several other inquiries, had made a reasonable attempt to exhaust his
administrative remedies); Rodriguez v. Hahn, No. 99 Civ. 11663, 2000 WL
1738424, at *2 (S.D.N.Y. Nov. 22, 2000) (holding that a pro se plaintiff
who was unfamiliar with the process and failed to file a grievance form,
but wrote numerous letters and memoranda to various prison officials had
made a reasonable attempt to exhaust his administrative remedies). Denial
of forms, however, does not itself constitute a denial of remedies. See
M.F. v. Reish, No. 95 Civ. ...