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United States District Court, Southern District of New York

April 8, 2003


The opinion of the court was delivered by: Frank Maas, United States Magistrate Judge


I. Introduction

Plaintiff Jerome Jones is a former State inmate currently released on parole.*fn1 In this pro se civil rights action under 42 U.S.C. § 1983, he claims that while he was lodged at the Manhattan Detention Complex ("MDC") prior to his conviction, certain of the defendants gave him the anticoagulant Heparin, and other drugs contained in gelatin capsules, thereby exposing him to products containing pork. Jones is a Muslim. Liberally construed, his complaint alleges that the defendants violated the First Amendment by not allowing him to exercise his religious rights and the Eighth Amendment by being deliberately indifferent to his serious medical needs.

Defendants Luis Marcos, President of the New York City Health and Hospitals Corporation ("HHC"), Frank Cirillo, HHC's Vice President, and St. Barnabas Hospital ("St. Barnabas") have moved to dismiss Jones's Amended Complaint, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, on numerous grounds, including nonexhaustion of Jones's administrative remedies, failure to state a claim upon which relief can be granted, and qualified immunity. (See Docket Nos. 12, 23). Jones, in turn, has filed a motion for a default judgment against six of the individual defendants. (Docket No. 18). For the reasons set forth below, I recommend that the defendants' motions be granted, that Jones's motion be denied, and that the Amended Complaint be dismissed with prejudice as against all of the defendants.

II. Facts

I have assumed for present purposes that the facts set forth in the Amended Complaint and Jones's other papers are true. Those facts, and other matters of public record, are as follows:

In 1989, while he was incarcerated at the Woodbourne Correctional Facility on another charge, Jones learned that he had a life-threatening illness. (See Am. Compl. at 9). Despite that diagnosis, he was not given suitable medical treatment by State officials. (Id.).

By 1999, Jones had been released from state custody and was receiving dialysis treatment. (Id. at 5; (last visited Apr. 4, 2003)). On November 23, 1999, he was arrested at his dialysis center following his failure to appear in state court on a date when he actually was hospitalized. (Am. Compl. at 5). He was lodged at the Brooklyn House of Detention after his arrest, but soon was transferred to the MDC so that he could continue his dialysis. (Id.). From November 24, 1999 through May 14, 2000 — a period of nearly six months — the medical treatment that Jones received at the MDC involved the use of pork by-products, including Heparin.*fn2 (Id. at 5-6).

As a practicing Muslim, Jones may not use products containing pork. (Id. at 5). On or about November 29, 1999, Jones informed John Doe (Conyer's/O'Conners), a doctor at the MDC, that he wanted to be given another form of Heparin — "[s]uch as Beef, Lamb [or] Synthe[t]ics" — so that he would not have to compromise his religious beliefs.*fn3 (Id.). The doctor rebuffed that request, stating: "This is medicine, a blood thinner, that you need for your dialysis's [sic] treatment." (Id.). Thereafter, throughout his stay at the MDC, many of the individual defendants, including John Doe (Conyer's/Conners) regularly gave Jones pork-based Heparin in the course of his dialysis treatments. (Id. at 6). Jones contends that this would not have occurred had he been Jewish or a Jehovah's Witness. (Id. at 7).

Jones claims to have suffered "psychological injury . . . punctuated by nightmares and . . . sleepless nights" as a consequence of the defendants' actions. (Id.). He further contends that the use of pork-based Heparin exacerbated his high blood pressure. (Id. at 5). For these alleged wrongs, Jones seeks to recover $80 million consisting of $40 million for his emotional pain and suffering, an additional $10 million in compensatory damages, and $30 million in punitive damages. (Id. at 8).

Jones concedes in his Amended Complaint that he did not present the facts giving rise to his claims to the MDC through its prisoner grievance procedure. (Id. ¶¶ II.A, B). Instead, because he was a "member of the [MDC's] Inmate Counsel [B]oard," Jones filed a "report" "with[] the in house Inmate Counsel at M.D.C." and made his grievance know n directly to the Warden. (Id. ¶ II.B, C; Pl.'s Affirm. in Supp. of Mot. Not to Dismiss Pl.'s Am. Compl. ("Rebuttal") ¶ 3). He was awaiting a response from the Inmate Counsel when he w as declared "State Ready" and transferred from the MDC. (Rebuttal ¶ 3).

Jones's original Complaint was dated February 24, 2000 and received by this Court's Pro Se Office on May 5, 2000. (Docket No. 1). In that pleading, Jones named as defendants the City of New York and the Department of Correction ("DOC")(the "municipal defendants"), as well as HHC, St. Barnabas, and St. Vincent's Medical Center (the "hospital defendants"). On August 30, 2000, Chief Judge Mukasey dismissed the Complaint sua sponte. (Docket No. 2). In his order, Judge Mukasey held that the municipal defendants could not be held liable in the absence of an officially-adopted policy or custom that directly caused Jones to be deprived of a constitutional right. (Id. at 2-3). Although Jones was given leave to file an amended complaint within sixty days, Judge Mukasey directed that he name as defendants only those individuals who were directly involved in the allegedly unlawful conduct and detail each of their specific roles. (Id. at 3-6).

Jones's Amended Complaint, which was timely filed, deleted the municipal defendants from the caption, maintained his claims against the hospital defendants, and added several individual defendants. (See Docket No. 4). Thereafter Jones agreed to dismiss his claims against St. Vincent's Medical Center. (Docket No. 26).

Following the filing of St. Barnabas' motion to dismiss, Jones submitted a memorandum of law, in which he argued that the inmate grievance procedures in the City's jails are "a farce and a sham" because standard grievance forms are rarely, if ever, available, and, even if completed, are picked up only twice a month and not answered for an additional month. (Docket No. 19 at 2-3). Despite his criticisms of the grievance system, Jones asked this Court to stay this action so that he could attempt to exhaust his administrative remedies.*fn4 (Id. at 4).

III. Discussion

A. Standard of Review

A court reviewing a motion to dismiss a complaint pursuant to Rule 12(b)(6) must accept all of material factual allegations of the complaint as true and draw all reasonable inferences in the plaintiff's favor. See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 1161, 122 L.Ed.2d 517 (1993); Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). A claim may be dismissed only when it has been established "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

When a plaintiff is proceeding pro se, as here, the complaint must be held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) (per curiam). Thus, the allegations must be read "liberally" and interpreted "to raise the strongest arguments that they suggest." Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). This principle applies with particular force in cases such as this in which a pro se plaintiff alleges civil rights violations. See, e.g., Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993); Contes v. City of New York, 1999 WL 500140, at *2 (S.D.N.Y. July 14, 1999).

In keeping with these precepts, although Rule 12(b)(6) generally restricts a court's consideration to the four corners of the complaint, pro se pleadings may be read together to determine whether a plaintiff conceivably could be entitled to relief. See, e.g., Burgess v. Goord, 1999 WL 33458, at *1 n. 1 (S.D.N.Y. Jan. 26, 1999); Gadson v. Goord, 1997 WL 714878, at *1 n. 2 (S.D.N.Y. Nov. 17, 1997) (considering allegations set forth in plaintiff's motion papers in deciding defendants' Rule 12(b)(6) motion); Donahue v. United States Dep't of Justice, 751 F. Supp. 45, 49 (S.D.N.Y. 1990) ("The policy reasons favoring liberal construction of pro se pleadings warrant the Court's consideration of the allegations contained in plaintiffs' memorandum of law, at least where those allegations are consistent with the allegations in the complaint.").

B. Jones Has Failed to Exhaust His Administrative Remedies

"In general, exhaustion of state remedies `is not a prerequisite to an action under § 1983.'" Heck v. Humphrey, 512 U.S. 477, 480, 114 S.Ct. 2364, 2369, 129 L.Ed. 383 (1994) (quoting Patsy v. Bd. of Regents of Fla., 457 U.S. 496, 501, 102 S.Ct. 2557, 2560, 73 L.Ed.2d 172 (1982) (emphasis added)). Prisoner suits are an exception. Pursuant to 42 U.S.C. § 1997e(a), Congress has required that an inmate seeking to maintain an action challenging prison conditions under Section 1983 must first exhaust all available administrative remedies. This procedural requirement, enacted as part of the Prisoner Litigation Reform Act of 1996 ("PLRA "), is mandatory. See Booth v. Churner, 532 U.S. 731, 739, 121 S.Ct. 1819, 1824, 149 L.Ed.2d 958 (2001). Furthermore, as the Supreme Court has recently held, the duty to exhaust administrative remedies before filing suit "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 992, 152 L.Ed.2d 12 (2003).

To pursue his First and Eighth Amendment claims in this action, Jones therefore must first have exhausted his remedies. Although he alleges that the grievance system at the MDC was ineffective, he has not shown that he made any attempt to file a grievance before commencing this action. Hemphill v. State of New York, 198 F. Supp.2d 546, 549 (S.D.N.Y. 2002) ("Prison officials are entitled to require strict compliance with an existing grievance procedure."). Moreover, to the extent that his criticism of the grievance system is based on the amount of time that it allegedly takes to pursue each level of appeal, it clearly is baseless since DOC's established procedures impose strict time limits for a decision to be made at each level.*fn5 The DOC procedures further provide that "[i]f a grievance is not decided within the allotted time frames, the grievant has the option of granting an extension or appealing the grievance to the next level." (Zwerling Affirm. Ex. 3 at ¶ III.B.6).

By his own admission, Jones learned that he was being given porcine Heparin in late November 1999. Nevertheless, he failed to file a grievance at any time over the next six months. His decision to attempt an end-run around the grievance system by bringing his complaint directly to the in-house Inmate Counsel and Warden at the MDC, while perhaps understandable in light of his position on an institutional board, does not comply with the grievance procedures promulgated by DOC, which obviously are intended to ensure that grievances are resolved at the lowest possible level, not the highest. Cf. Booth, 532 U.S. at 737, 121 S.Ct. at 1823 (indicating that the PLRA may express Congress' view that "the administrative process itself would filter out some frivolous claims and foster better-prepared litigation once a dispute did move to the courtroom").

Finally, there is no basis for staying this action to permit Jones to pursue exhaustion nearly three years after he was transferred to state custody. As a practical matter, since he is no longer in a City facility, it appears unlikely that Jones would be able to do so. However, even if Jones were able to establish that the DOC procedures permitted a former inmate to file a grievance, the PLRA requires that such exhaustion be pursued before a federal action is commenced. See Neal v. Goord, 267 F.3d 116, 123 (2d Cir. 2001) ("[A]llowing prisoner suits to proceed, so long as the inmate eventually fulfills the exhaustion requirement, undermines Congress' directive to pursue administrative remedies prior to filing a complaint in federal court."); Brown v. Comm'r, 2003 WL 1571699, at *4 (S.D.N.Y. Mar. 26, 2003) ("Plaintiff's request that this Court effectively stay this action in order to allow him to exhaust his administrative remedies is precluded by the requirement under the PLRA that an inmate exhaust all administrative remedies prior to commencing a federal action."). Accordingly, the exhaustion of Jones's administrative remedies several years after he left the MDC, even if it were feasible, could not salvage this suit.

C. Jones Has Not Met the "Physical Injury" Requirement

The PLRA further requires that an inmate seeking to recover anything other than nominal damages establish that he has suffered a "physical injury." See 42 U.S.C. § 1997e(e)("No Federal civil action may be brought by a prisoner . . . for mental or emotional injury suffered while in custody without a prior showing of physical injury."). "Courts have strictly construed this requirement, barring claims by prisoners who demonstrate solely emotional or mental injury and barring physical injury claims where the injury alleged is de minim[i]s." Porter v. Coombe, 1999 WL 587896, at *2 (S.D.N.Y. Aug. 4, 1999).

Although Jones claims that he has suffered psychological damage, and speculates that the porcine Heparin elevated his blood pressure, these consequences of the defendants' conduct, even if established, are clearly insufficient to meet the "physical injury" threshold. See Alonzo v. Sqyres, 2002 WL 1880736 (N.D.Cal. Aug. 9, 2002) (plaintiff taken to hospital for high blood pressure, brought on by "gruesome psycholog[ical] harassment[]," has not suffered a prior physical injury). Cf. Pinkston-Bey v. DeTella, 1997 WL 158343, at *3 (N.D.Ill. Mar. 31, 1997) (severe headaches are not physical injury). Consequently, the Court would have to dismiss Jones's Amended Complaint for failure to state a claim even if he were able to meet the exhaustion requirement — which he is not.

D. Repleading

Rule 15(a) of the Federal Rules of Civil Procedure states that a party shall be given leave to replead when justice so requires. A district court therefore "should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991) (emphasis added). Here, Jones has previously been afforded such an opportunity. Furthermore, even if Jones were able to replead to allege some physical injury, his failure to exhaust his administrative remedies before bringing suit is incapable of being rectified. See Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) ("Where it appears that granting leave to amend is unlikely to be productive . . . it is not an abuse of discretion to deny leave to amend.").

IV. Conclusion

For the reasons set forth above, the defendants' motions to dismiss (Docket Nos. 12, 23) should be granted, the plaintiff's motion for a default judgment (Docket No. 18) should be denied, and the case should be dismissed with prejudice as against all the defendants.

V. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have any objections to this Report and Recommendation, they must, within ten (10) days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable Deborah A. Batts, and to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, N.Y. 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Batts. Any failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).


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