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March 25, 2003


The opinion of the court was delivered by: Denny Chin, United States District Judge


Johnny McCoy brings this pro se § 1983 civil rights action against twenty-six officials and employees of the New York State Department of Correctional Services ("DOCS"). McCoy alleges numerous violations of his constitutional rights, including threats, beatings, and the denial of proper medical care, while incarcerated at Sing Sing Correctional Facility ("Sing Sing"). Defendants move to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) and (6) for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act of 1995 (the "PLRA") and, as to certain defendants, pursuant to Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction.

McCoy's 122-paragraph complaint asserts claims based on nine incidents. On its face, the complaint alleges that McCoy filed grievances with respect to some but not all of the incidents, and the complaint does not report the results of the grievance proceedings, other than to allege that the grievance personnel did "Nothing!" Materials extrinsic to the complaint indicate that McCoy filed as many as nine grievances, although some of the grievances were based on the same incident. Defendants have also submitted an affidavit stating that a search of DOCS records reveals that McCoy did not appeal with respect to any grievance.

A host of questions are presented by the exhaustion issue: Is the exhaustion requirement jurisdictional? or is failure to exhaust an affirmative defense? Must exhaustion be pleaded in the complaint? Is a motion to dismiss for failure to exhaust addressed solely to the complaint? or may extrinsic materials be considered? May unexhausted claims be considered on the merits? If the statute of limitations is an issue, is it tolled while the plaintiff is exhausting unexhausted claims? What happens if, as a practical matter, plaintiff cannot exhaust before the statute of limitations expires? Can procedural errors, such as missed administrative deadlines that render future exhaustion impossible, effectively bar an inmate from a federal court remedy?

As this case demonstrates, the PLRA's "enigmatic" exhaustion requirement,*fn1 intended to reduce the perceived burdensome flow of prisoner litigation, has had the "perverse effect []" of generating extensive litigation.*fn2 Indeed, the law on the narrow subject of the PLRA's exhaustion requirements continues to evolve month by month.

For the reasons that follow, defendants' motion is granted and the complaint is dismissed. Although plaintiff's failure to fully exhaust is not plain from the face of the complaint, because he has been given notice and an opportunity to be heard, I treat this motion as a summary judgment motion and consider extrinsic materials submitted by both sides. Based on these materials, I conclude that plaintiff has not fully exhausted any of his claims. Next, as mandated by the PLRA, I consider whether McCoy's complaint states a claim upon which relief may be granted. I find that, with two exceptions, it does not. I conclude the complaint sufficiently pleads only two claims of excessive force. Although it appears that the statute of limitations will expire with respect to those claims shortly, the Court does not have the power to stay the action until McCoy can exhaust. Rather, it appears that dismissal is the only option, even though, as a practical matter, McCoy is not likely to be able to exhaust before the statute of limitations expires. Accordingly, the excessive force claims are dismissed without prejudice; the remainder of the complaint is dismissed with prejudice.


I. The Facts

The facts as summarized below are drawn from the complaint. For purposes of this motion, I assume the allegations are true.

A. The Parties

Although McCoy is now incarcerated in Virginia, all events relevant to the complaint took place at Sing Sing from December 1996 through July 1998. On July 10, 1998, McCoy was transferred from Sing Sing to Southport Correctional Facility ("Southport").

McCoy names twenty-six defendants in the caption of his complaint. During McCoy's incarceration, defendants Moo-Young, Bedford, Cruz, Ramirez, Viviano, Gilchrist, Evans, Rios, and Paroline were employed as corrections officers by DOCS, assigned to Sing Sing.*fn3 Defendant Murray was also employed by DOCS and was assigned to Sing Sing as a sergeant at that time. Defendants O'Brien, Aitcherson, Rivera, and DelSantos worked in Sing Sing Mental Health Services, while defendants Gross, Halko, and Figueroa were members of Sing Sing's medical staff. Defendants Goord and Greiner are the Commissioner of DOCS and Superintendent of Sing Sing, respectively. Also named as defendants are the Sing Sing Mental Health Staff, Sing Sing Medical Staff, and various John and Jane Does.

B. The Incidents

While imprisoned at Sing Sing, McCoy maintains that he was assaulted twice, verbally harassed, denied medical and mental health treatment, and subjected to fabricated disciplinary reports. McCoy claims these acts were part of a conspiracy of retaliation for a lawsuit, still pending in Bronx County, stemming from an April 1996 assault by officers at Rikers Island during a previous term of incarceration. (Compl. ¶ I-B).

1. Denial of Mental Health Treatment

On January 22, 1997, McCoy sought counseling from Sing Sing Mental Health Services. His psychologist, defendant O'Brien, displayed an immediate prejudice against him, accusing him of being "highly litigious" and failing to help him "ascertain peace within the depressive state that dominated his inner soul." (Compl. ¶¶ 5-6, 8, 12). McCoy had another session with O'Brien on March 18, 1997. (Compl. ¶ 23). Later, upon gaining access to his mental health records in October 1998 after he was transferred to Southport, McCoy learned that O'Brien had noted during that session, "[h]e appears to be rationalizing Mental Health Services in a manipulative fashion for possible future litigation and/or immediate gratification." (Compl. ¶¶ 24, 116).

At his request, McCoy began seeing a new psychologist, defendant Aitcherson, on September 25, 1997. While initially helpful, Aitcherson later "biasly analyzed [McCoy's] disposition and character as being one of aggression." (Compl. ¶¶ 48-49, 52). During four other sessions between November 1997 and February 1998, McCoy tried to "express the displacency [sic] he was housed with," but Aitcherson disregarded his complaints, writing in his file that McCoy was a "psycho." (Compl. ¶¶ 59-62, 115).

On August 14, 1997, after passing out and complaining of amnesia, McCoy was interviewed by defendant Rivera. Rivera, "neglecting the seriousness of [his] amnesia," sent McCoy back to his cell, where he "could have been subjected to any type [of] physical abuse and/or death . . . in that precarious state of being." (Compl. ¶¶ 41-43). Rivera also noted that McCoy appeared to be feigning amnesia. (Compl. ¶ 42).

2. January 23, 1998 Use of Excessive Force

On the morning of January 23, 1998, McCoy was in a stairwell waiting to be pat-frisked by Officer Moo-Young before proceeding to the yard for recreation period. Sgt. Murray was assigned to supervise the pat-frisk and recreation period. Officers Cruz, Bedford, and Ramirez were also present. Moo-Young asked McCoy to lay his hands flat on the wall for the pat-frisk and immediately pushed the base of McCoy's back, pressing him against the wall. He then grabbed McCoy's feet to pull him off the wall. McCoy would have fallen to the floor if he had not grabbed onto the "boiling pipes" above him. (Compl. ¶¶ 83-85). Cruz and Bedford tried to get McCoy off the pipes by punching him in the head and upper body while he hung for about ten minutes, "four feet off the ground in a horizontal position." (Compl. ¶¶ 86-88). Murray did nothing to stop the officers, but instead "aided and abetted" them by hiding around the corner. (Compl. ¶¶ 78, 109). Finally, several sergeants arrived at the scene and handcuffed McCoy. (Compl. ¶¶ 92-95).

McCoy was later treated in the emergency room for various injuries, including second-degree burns to his right tricep resulting from his contact with the boiling pipes. (Compl. ¶¶ 100-01). The defendants involved in this incident then filed an assault on staff charge against McCoy. In February 1998, the charge was dismissed. (Compl. ¶ 99).

3. March 12, 1998 Verbal Harassment

McCoy alleges that on March 12, 1998, Murray "threat[ened] to assault" him, telling him that "it was not over, and that [he] and his correctional officers were going to hospitaliz[e] [him]." (McCoy Letter of 6/20/02, at 2). That same day, McCoy filed a grievance regarding this incident. (Id.).

4. March 17, 1998 Use of Excessive Force

On March 17, 1998, McCoy was on his way to his housing block after recreation period when Officers Viviano, Gilchrist, Paroline, and Evans jumped him. In front of other inmates and staff, the officers forced him to the ground, handcuffed him, and led him to the commissary. After clearing the area of any witnesses, the officers threw McCoy face down on the floor and beat him until he resembled "the elephant man." (Compl. ¶ 17). As a result, McCoy sustained injuries to his right thigh and "tremendous facial trauma." (Compl. ¶ IV-A). Officer Rios was assigned to the commissary post at that time, but was not involved in the assault. (Compl. ¶ 117).

Following this incident, McCoy was charged with several disciplinary infractions, including assault on staff, violation of a direct order, interference with an employee, and verbal harassment or gesture. On April 2, 1998, McCoy was found guilty of all charges. (Pl.'s Art. 78 Pet. at 3). McCoy subsequently filed an Article 78 petition to expunge the charges from his record. (Compl. ¶ 118).

5. Interference with Access to the Court

Viviano, Gilchrist, Paroline, and Evans then "[sought] out to hold [his] [Article 78] appeal for 30 days before permitting it to go out," knowing that there was a thirty-day statutory period of limitations for challenging the disciplinary hearing judgment. (Compl. ¶ 120). McCoy never received a certified mail return receipt for this mailing and filed a grievance regarding the matter. (Compl. ¶ 120).

6. Special Housing Unit Conditions of Confinement

Following the March 17, 1998 incident, McCoy was transferred to the Special Housing Unit ("SHU"), where he was subjected to "cruel and unusual punishment . . . by the prison officials at Sing Sing." (Compl. ¶ 118). He contends that he was not allowed to shower for more than two weeks and when permitted to do so, he was forced to wear metal leg shackles "like some untamed animal." (Compl. ¶ 118). McCoy also claims that his SHU cell was infested with roaches, that he was served cold food, and that he was not given shaving razors. Because of these conditions, McCoy filed a number of grievance reports. (Compl. ¶ 119).

7. Denial of Adequate Medical Treatment

On three occasions, McCoy alleges that Figueroa, a nurse in the emergency room, failed to provide adequate medical treatment. On August 14, 1997, McCoy claims that Figueroa "just went through the motions" as he "[lay] helpless in the bed . . . suffering from amnesia." (Compl. ¶¶ 30-33, 39-40). On September 26, 1997, Figueroa refused to see McCoy, informing him that inmates with chronic pains were required to first submit a sick-call slip to be seen by a nurse. In response, McCoy punched the window of the emergency room door. This conduct, which McCoy admits, led to an infraction that was substantiated after a hearing on October 11, 1997. (Compl. ¶ 37). On May 28, 1998, McCoy waited twenty-five minutes in the emergency room, only to have Figueroa send him back to his cell without treating his chest pains. (Compl. ¶¶ 32-34, 39). According to McCoy, Figueroa had a "grave vendetta" against him, stemming from his prior incarceration at Sing Sing in 1993 and 1994. (Compl. ¶ 30).

McCoy also claims that "medical staff acted in collusion with . . . correctional officials" to lift his medical hold, resulting in his transfer to Southport on July 10, 1998. Consequently, McCoy missed two outside hospital appointments. (Compl. ¶ 121). McCoy was taken to outside hospitals for treatment on at least three other dates. Despite these hospital visits, McCoy maintains that his medical conditions worsened. These included post-traumatic stress syndrome, post-traumatic tension migraine headaches, nightmares, insomnia, and cervical spine disc damage, all of which resulted from the alleged assault at Rikers Island. In addition, McCoy suffered from a history of loss of consciousness, high blood pressure, and "head, back and undescended testicle injuries." (Compl. ¶¶ IV-A, 20, 23, 57).

8. Failure to Supervise

Finally, McCoy claims that Commissioner Goord and Superintendent Greiner failed to ensure that "no prisoner within [DOCS] custody and control be subjected to unjustifiable and unwarranted physical force," and also failed to discipline defendants who violated his constitutional rights.

C. Administrative Proceedings

1. The Complaint

McCoy drafted his complaint on a form provided by the court to prisoners filing a § 1983 complaint. The form asks, "Did you present the facts relating to your complaint in the state prisoner grievance procedure?" and, "What was the result?" McCoy checked the box for "yes" in response to the first question and wrote "Nothing! The grievance personel [sic] . . . has accepted on `face value' the allegations from the very one's [sic] I've put in the grievances against!" in answer to the second. (Compl. ¶ IIB-C).

In the body of his complaint, McCoy asserts that he filed four grievances, giving grievance numbers, but these appear to be based on just three incidents: the interference with access to the courts, the housing conditions in the SHU, and the denial of medical treatment. (Compl. ¶¶ 119, 120).

2. McCoy's Opposition

In a letter to the Court dated June 20, 2002, McCoy identifies two additional grievances (providing grievance numbers) he filed concerning the January 23, 1998 use of force and the threat made to him by Murray on March 12, 1998, and he reiterated what he had said in his complaint with respect to other grievances. He represented that he had filed additional grievances as well but stated that he was attempting to obtain copies from his mother, who was retaining his legal papers. (McCoy Letter of 6/20/02, at 2). He invited the court, if it could not wait for him to find the material, to "seek[] a copy of the grievances I filed, from Sing Sing's grievance department, or the Supreme Court" where they were attached as supporting exhibits to his Article 78 proceeding.

3. Other Extrinsic Materials

Although McCoy did not file a grievance in connection with the March 17, 1998 excessive force incident that followed the threat on March 12, he did file an Article 78 petition and he has submitted a number of documents related to that case. In these documents, McCoy refers to other grievances by number. (See, e.g., App. to Art. 78 Pet.).

Defendants submitted a declaration in support of their motion to dismiss from Thomas G. Eagen, Director of the DOCS Inmate Grievance Program ("IGP"). Eagen stated that a search of Central Office Review Committee ("CORC") files found no "records or indication" that McCoy filed an appeal of any grievances at Sing Sing. (Eagen Decl. ¶ 5).

II. Prior Proceedings

McCoy brought this action by submitting his pro se complaint dated and postmarked January 20, 2001, and received by the Court's Pro Se Office on January 24, 2001. He was granted in forma pauperis status and the complaint was filed on April 13, 2001.

On March 1, 2002, defendants moved to dismiss the complaint. Plaintiff submitted opposition papers on two dates, June 6 and June 24, 2002, together with certain documents as exhibits. As with his complaint, McCoy appended language affirming that "the foregoing is true and exact" at the foot of each submission, although his signature was not notarized. The motion seeks to dismiss McCoy's claims against all named defendants, including those who have not been served with the complaint.

Broadly construed, the complaint alleges that various defendants (1) conspired to and did retaliate against McCoy for filing an unrelated lawsuit against the City of New York; (2) exhibited deliberate indifference to his medical and mental health needs; (3) subjected him to "cruel and unusual" conditions of confinement; (4) violated his right of access to the court by interfering with legal mail; (5) verbally harassed him; and (6) used excessive force against him on two occasions. Lastly, McCoy asserts (7) a claim of supervisory liability against defendants Goord and Greiner.


I. ...

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