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ARNOLD v. GOETZ

February 4, 2003

DAVID ARNOLD, PLAINTIFF,
V.
C.O. A. GOETZ, SGT. A. MONTEGARI, AND C.O. W. KELLY, DEFENDANTS



The opinion of the court was delivered by: Whitman Knapp, Senior District Judge.

    OPINION & ORDER

Plaintiff David Arnold ("Arnold" or the "plaintiff") is an inmate at the Green Haven Correctional Facility. Arnold, proceeding pro se, brought this action pursuant to 42 U.S.C. § 1983 in order to recover damages for an alleged assault he suffered at the hands of Correctional Officer A. Goetz, Correctional Officer W. Kelly, and Sergeant A. Montegari (collectively the "defendants"). The defendants argue that Arnold failed to exhaust his administrative remedies and thereby failed to satisfy the exhaustion requirement imposed by the Prison Litigation Reform Act of 1995, Pub.L. No. 104-134, Title VIII, § 803(d), 110 Stat. 1321-71 (1996) (codified as amended at 42 U.S.C. § 1997e(a)) ("PLRA"). As such, they now move to dismiss Arnold's action pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.

BACKGROUND

Arnold is an inmate at the Green Haven Correctional Facility. (Am. Compl. at 2.) On June 22, 2001, Correctional Officer A. Goetz ("Goetz") ordered Arnold "to lock in." (Am. Compl. at 3.) Thereafter, Goetz allegedly entered Arnold's cell, grabbed him by the neck, and told Arnold that he would have "to learn to respect him." (Am. Compl. at 4.) When Goetz then purportedly pushed Arnold's face towards Goetz's crotch and told the plaintiff to "suck his penis," Arnold refused and began to struggle with him. Id. Goetz allegedly responded by beating the plaintiff. Id. He then led Arnold out of his cell and purportedly threw him to the floor in such a manner that the plaintiff struck his head. Id.

At this stage, another correctional officer escorted Arnold down some stairs. Id. While the plaintiff stood facing a wall in handcuffs, Correctional Officer W. Kelly ("Kelly") and Sergeant A. Montegari ("Montegari") came by to question Arnold regarding his assault against a staff member. (Am. Compl. at 5.) Before the plaintiff had a chance to answer their questions, Montegari and Kelly allegedly began to beat him. Id.

In light of the purported injuries he sustained from these assaults, the plaintiff brought this action against Goetz, Kelly, and Montegari pursuant to 42 U.S.C. § 1983. After filing his initial Complaint in 2001, he later filed an Amended Complaint in January 2002. In his Amended Complaint, the plaintiff indicated that a grievance procedure existed at the Green Haven Correctional Facility. (See Am. Compl. at 2.) He also indicated that he had never presented the facts related to the assaults to correctional officials by way of that procedure. See id. In responding to a question on the form complaint which inquired about why the plaintiff failed to follow the grievance procedure, he simply stated: "Because I did not know what to do." (Am. Compl. at 3.)

Shortly after the plaintiff filed his Amended Complaint, the defendants moved to dismiss this action. They contend that the action must be dismissed because the plaintiff failed to exhaust his administrative remedies in satisfaction of the PLRA's exhaustion requirement. When the plaintiff failed to respond to that motion over the ensuing months, we issued an order affording him one more opportunity to submit such a response. See Arnold v. Goetz (S.D.N.Y. Dec. 17, 2002) No. 01 Civ. 8993 (WK), 2002 U.S. Dist. LEXIS 24224, at *1-*2. We directed Arnold to submit an opposition brief, if he so chose, by January 17, 2003. Id. at *2. As part of that directive, we also allowed Arnold to explain "what he meant when he indicated in his Amended Complaint that he `did not know what to do' with respect to submitting a grievance" even though he apparently knew that a grievance program existed at Green Haven. Id. To date, Arnold has not submitted an opposition brief and has offered no explanation regarding his statements in the Amended Complaint.

DISCUSSION

I. Motion To Dismiss For Lack Of Subject Matter Jurisdiction

The defendants move this Court to dismiss the plaintiff's action pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. In other words, they contend that we lack subject matter jurisdiction to entertain this lawsuit and that the plaintiff has failed to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(1); Fed.R.Civ.P. 12(b)(6). Where, as here, the defendants have moved for dismissal under Rule 12(b)(1) as well as on other grounds, we must initially consider their Rule 12(b)(1) challenge since all other objections and defenses would become moot and need not be addressed if we first dismiss the action for lack of subject matter jurisdiction. United States ex rel. Kreindler & Kreindler v. United States Tech. Corp. (2d Cir.) 985 F.2d 1148, 1155-1156, cert. denied (1993) 508 U.S. 973; Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n (2d Cir. 1990) 896 F.2d 674, 678.

Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of a complaint when the court "lacks jurisdiction over the subject matter." Fed.R.Civ.P. 12(b)(1). However, the PLRA's exhaustion requirement is not jurisdictional in nature. Graham v. Perez (S.D.N.Y. 2000) 121 F. Supp.2d 317, 322. See also Handberry v. Thompson (S.D.N.Y. Jan. 28, 2003) No. 96 Civ. 6161 (CBM), 2003 WL 194205, at *3 ("the PLRA exhaustion requirement is not jurisdictional"); Mendoza v. Goord (S.D.N.Y. Nov. 21, 2002) No. 00 Civ. 146 (GEL), 2002 WL 31654855, at *2 n. 3 ("§ 1997e(a)'s exhaustion requirement is not jurisdictional"); Rodriguez v. Ghoslaw (S.D.N.Y. June 28, 2002) No. 98 Civ. 4658 (GEL), 2002 WL 1424586, at *2 ("Failure to exhaust is not a jurisdictional matter"); Cuoco v. U.S. Bureau of Prisons (S.D.N.Y. Mar. 31, 2000) No. 98 Civ. 9009 (WHP), 2000 WL 347155, at *8 ("Exhaustion of administrative remedies under the PLRA is not jurisdictional"); Santiago v. Meinsen (S.D.N.Y. 2000) 89 F. Supp.2d 435, 441 ("the exhaustion requirement of the PLRA is not jurisdictional"); Howard v. Headly (E.D.N.Y. 1999) 72 F. Supp.2d 118, 122-123 ("[T]he Fifth, Sixth, Seventh, and Ninth Circuits have held that the administrative exhaustion provision of 42 U.S.C. § 1997e(a) is not a jurisdictional requirement . . . It is assumed that the Second Circuit will concur, as the Court does, . . . and hold, as have all those circuits courts which have considered the issue, that the statute does not preclude subject matter jurisdiction."); Hayes v. N.Y.S. D.O.C. Officers (S.D.N.Y. Dec. 28, 1998) No. 97 Civ. 7383 (MBM), 1998 WL 901730, at *7 n. 4 (internal citations omitted) ("[T]he vast majority of courts to have considered the issue have concluded that exhaustion under the PLRA is not a jurisdictional prerequisite. In light of § 1997e(c)(2), these courts are plainly correct.").

Rather, "[w]hen a defendant raises a prisoner's failure to comply with the PLRA's exhaustion requirement, the failure is properly assessed as an affirmative defense." Gonzalez v. Officer in Charge of Barber Shop on Duty on May 13, 1999 (S.D.N.Y. Mar. 13, 2000) No. 99 Civ. 3455 (DLC), 2000 WL 274184, at *3. See also Acosta v. Artuz (2d Cir. 2000) 221 F.3d 117, 121 (referring to the failure to exhaust administrative remedies in compliance with the PLRA as an affirmative defense); Jenkins v. Haubert (2d Cir. 1999) 179 F.3d 19, 28-29 ("Because, under the PLRA, a prisoner must exhaust administrative remedies before filing a § 1983 suit . . ., a defendant in a prisoner § 1983 suit may also assert as an affirmative defense the plaintiff's failure to comply with the PLRA's requirements."); Reyes v. Punzal (W.D.N.Y. 2002) 206 F. Supp.2d 431, 433 ("in the Second Circuit, failure to comply with the PLRA's exhaustion requirement is viewed as an affirmative defense"); John v. N.Y.C. Dep't of Corr. (S.D.N.Y. 2002) 183 F. Supp.2d 619, 624 ("Failure to comply with the exhaustion requirement is an affirmative defense."); Hallett v. New York State Dep't of Corr. Serv. (S.D.N.Y. 2000) 109 F. Supp.2d 190, 196 ("[I]n the Second Circuit, failure to comply with the PLRA's exhaustion requirement is viewed as an affirmative defense."); Cuoco, 2000 WL 347155, at *8 ("Exhaustion of administrative remedies under the PLRA . . . is an affirmative defense."); Howard v. Goord (E.D.N.Y. Dec. 28, 1999) No. 98-CV-7471 (FB), 1999 WL 1288679, at *2 ("When a defendant raises a prisoner/plaintiff's failure to comply with the PLRA's exhaustion requirement, the failure is properly assessed as an affirmative defense."). For that reason, the defense "may be waived by a defendant, or forfeited by failure to raise the defense." Rodriguez, 2002 WL 1424586, at *2. See also Perez v. Wisconsin Dep't of Corr. (7th Cir. 1999) 182 F.3d 532, 536 ("Defendants may waive or forfeit reliance on § 1997e(a), just as they may waive or forfeit the benefit of a statute of limitations."); Graham, 121 F. Supp.2d at 322 ("[T]he exhaustion requirement of the PLRA . . . may be waived in appropriate circumstances."). Cf. Davis v. New York (2d Cir. 2002) ___ F.3d ___, 2002 WL 31780920, at *7 (remanding case to district court to consider whether defendants waived compliance with the PLRA's exhaustion requirement by failing to raise the issue).

Although many courts agree that the PLRA's exhaustion requirement is not a jurisdictional prerequisite, we are cognizant that this view is not universally held in our district. A split exists among our fellow courts with respect to this issue. See Handberry, 2003 WL 194205, at *3; Law v. Bergamini (N.D.N.Y. Dec. 19, 2002) No. 01-CV-463 (LEK/DEP), 2002 U.S. Dist. LEXIS 25434, at *8 n. 3, approved (N.D.N.Y. Jan. 14, 2003) 2003 U.S. Dist. LEXIS 487, at *4-*5. Certain courts in this district have dismissed an inmate's § 1983 action for lack of subject matter jurisdiction in accordance with Rule 12(b)(1) where they determined that the inmate failed to exhaust his administrative remedies. See Harris v. Totten (S.D.N.Y. Jan 31, 2003) No. 01 Civ. 5214 (SHS), 2003 WL 221745, at *1, *4; Paulino v. Amicucci (S.D.N.Y. Jan. 27, 2003) No. 02 Civ. 208 (LAP), 2003 WL 174303, at *2-*3; Timmons v. Pereiro (S.D.N.Y. Jan. 27, 2003) No. 00 Civ. 1278 (LAP), 2003 WL 179769, at *1-*2; Cherry v. Edwards (S.D.N.Y. Nov. 20, 2002) No. 01 Civ. 7886 (AGS), 2002 WL 31619038, at *1-*2; Meehan v. Frazier (S.D.N.Y. Oct. 27, 2002) No. 01 Civ. 9591 (KMW) (KNF), 2002 U.S. Dist. LEXIS 20604, at *11; Benitez v. Straley (S.D.N.Y. Sept. 18, 2002) No. 01 Civ. 181 (RCC) (RLE), 2002 WL 31093608, at *2-*3; Hines v. Valhalla County Corr. Facility (S.D.N.Y. Aug. 8, 2002) No. 01 Civ. 6935 (SAS), 2002 WL 1822740, at *1, *4; Monsalve v. Parks (S.D.N.Y. June 21, 2002) No. 01 Civ. 6010 (LMM), 2002 WL 1359725, at *3; Long v. Lafko (S.D.N.Y. July 31, 2001) No. 00 Civ. 723 (VM), 2001 WL 863422, at *2; Hernandez v. Greiner (S.D.N.Y. May 1, 2000) No. 99 Civ. 4601 (NRB), 2000 WL 520639, at *2; Williams v. Muller (S.D.N.Y. April 25, 2000) No. 98 Civ. 5204 (BSJ), 2000 WL 487954, at *3. Cf. Johnson v. Bedheim (S.D.N.Y. July 13, 2001) No. 00 Civ. 720 (JSR), 2001 WL 799569, at *4; Rodriguez v. Goord (S.D.N.Y. Dec. 1, 2000) No. 99 Civ. 11665 (VM), 2000 WL 1773513, at *1-*2; Lombardo v. Goord (S.D.N.Y. July 26, 2000) No. 99 Civ. 1676 (NRB) (KNF), 2000 U.S. Dist. LEXIS 10476, at *6-*7.

We respectfully disagree with the primary premise underlying these decisions, namely that the PLRA's exhaustion requirement implicates a court's subject matter jurisdiction. See, e.g., Long, 2001 WL 863422, at *1. Although the Second Circuit has yet to rule on this question, every circuit court to have considered the issue has concluded that an inmate's failure to comply with § 1997e(a) does not deprive federal courts of jurisdiction. See Casanova v. Dubois (1st Cir. 2002) 289 F.3d 142, 146; Ali v. District of Columbia (D.C. Cir. 2002) 278 F.3d 1, 5-6; Foulk v. Charrier (8th Cir. 2001) 262 F.3d 687, 697 (citing Chelette v. Harris (8th Cir. 2000) 229 F.3d 684, 686-688, cert. denied (2001) 531 U.S. 1156); Nyhuis v. Reno (3d Cir. 2000) 204 F.3d 65, 69 n. 4; Wyatt v. Leonard (6th Cir. 1999) 193 F.3d 876, 869; Rumbles v. Hill (9th Cir. 1999) 182 F.3d 1064, 1068, cert. denied (2000) 528 U.S. 1074; Perez, ...


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