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DELANO v. GREINER

United States District Court, Southern District of New York


August 26, 2003

SEDNEY DELANO, PLAINTIFF, — AGAINST — CHARLES GREINER, SUPERINTENDENT OF SING SING C.F.; DONALD SELSKY; CAPT. R.J. MINOGUE; SGT. CATOGGIO; C.O. POSSOLO; C.O. RUIZ; C.O. MARTINEZ, DEFENDANTS

The opinion of the court was delivered by: Thomas Griesa, Senior District Judge

OPINION

Plaintiff Sedney Delano, proceeding pro se, filed this civil rights action under 42 U.S.C. § 1983, alleging that he was severely beaten by corrections officers Catoggio, Possolo, Ruiz and Martinez while an inmate at Sing Sing Correctional Facility. In addition to these four officers, the complaint also names as defendants Superintendent Charles Greiner, Captain R.J. Minogue and a prison employee named Donald Selsky. The court dismissed the complaint against Selsky on September 5, 2001. One of the named correction officers, Possolo, has not been served with the summons and complaint. This means that the action now involves defendants Greiner Minogue, Catoggio, Ruiz and Martinez. Four of the defendants — Minogue, Catoggio, Ruiz and Martinez — have answered the complaint. [ Page 2]

All five remaining defendants move to dismiss the complaint for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) and for judgment on the pleadings under Fed.R.Civ.P. 12(c). Defendants argue that the action is barred by failure to exhaust administrative remedies as required by the Prison Litigation Reform Act of 1995 ("PLRA"), 42 U.S.C. § 1997e(a).

The court concludes that the action should be dismissed for failure to exhaust administrative remedies. However, the problem is not a jurisdictional one. It is a failure to show what is necessary to state a valid cause of action. Also, since materials outside the pleadings have been presented and are being considered, defendants' motion will be treated as one for summary judgment. As such, defendants' motion is granted and the action is dismissed.

The Pleadings and Factual Materials

The pro se plaintiff has submitted his complaint and a series of letters. As described above, four defendants have answered. Also a declaration has been submitted on behalf of all defendants. The declaration is by Thomas Eagen, Director of the Inmate Grievance Program at the New York State Department of Correctional Services. It presents plaintiffs complete file of grievances made at Sing Sing, alleging staff harassment. [ Page 3]

Plaintiff s lawsuit is about an alleged beating that plaintiff says occurred on the afternoon of March 23, 1999, and also about a subsequent disciplinary hearing on charges against plaintiff arising out of the March 23, 1999 incident. Plaintiff claims that he was severely beaten by officers Catoggio, Possolo, Ruiz, Martinez and another corrections officer, Booth, who is not named in the complaint. Plaintiff also claims that Superintendent Greiner knew of the violent tendencies of Catoggio and is liable for Catoggio's actions. Finally, plaintiff alleges that the disciplinary hearing was conducted by Minogue in a manner which violated plaintiffs rights.

New York State has established an administrative procedure for inmate grievances. N.Y. Correctional Law § 139 (McKinney's 2003). An inmate has fourteen calendar days after an incident to file a grievance. 7 N.Y.C.R.R. 701.7(a)(1). A grievance may be resolved informally with the inmate's consent or a hearing must be held by the Inmate Grievance Resolution Commission (IGRC) if there is no informal resolution. 7 N.Y.C.R.R. 701.7(a)(3) and (4). An inmate has a right of appeal from an IGRC decision to the superintendent of the correctional facility and, after that, a right of appeal to the Central Office Review Committee (CORC). 7 N.Y.C.R.R. 701.7(b) and (c). Appeal to the CORC exhausts the inmate's administrative remedy. Mendoza v. Goord, No. 00 Civ. 0146, 2002 WL 31654855, at *2 (S.D.N.Y. Nov. 21, 2002). [ Page 4]

Plaintiff has never submitted a grievance about the March 23, 1999 incident, nor has he submitted a grievance against Catoggio, Possolo, Ruiz, Martinez or any of them, regarding that incident. He has never submitted a grievance against Superintendent Greiner alleging Greiner's responsibility for the conduct of Catoggio in that incident. Plaintiff has not submitted a grievance against Minogue, alleging a violation of plaintiff's rights in the disciplinary hearing arising out of the March 23, 1999 incident. Thus he has not sought an administrative remedy about the matters alleged in this lawsuit.

Plaintiff did submit a series of grievance letters to the prison authorities, consolidated into a single grievance, designated as SS-29187-99, which was filed with the IGRC on April 14, 1999. It was directed against Correction Officer Callazo and Sgt. Chapman. Plaintiff alleged that Callazo and Chapman harassed him, by physically and verbally abusing him following the incident with Catoggio and others. Although the latter incident, which apparently refers to the subject of the present action, was mentioned incidentally in the grievance against Callazo and Chapman, that grievance did not complain about what is involved in the present case.

One matter relating to plaintiffs grievance against Callazo and [ Page 5]

Chapman is worth noting. The final decision by CORC, which was against plaintiff, stated that the Sing Sing IGRC was not in receipt of a grievance for March 23, 1999. CORC advised plaintiff in writing to contact the Inmate Grievance Program Supervisor at Sing Sing with "any questions about it." However, there is no indication that plaintiff did so.

Discussion

Subject Matter Jurisdiction

Defendants seek dismissal of the complaint for lack of subject matter jurisdiction, under Fed.R.Civ.P. 12(b)(1). The Second Circuit has not ruled whether the PLRA's exhaustion requirement presents a question of jurisdiction. Handberry v. Thompson, No. 96 Civ. 6161, 2003 WL 194205, at *3 (S.D.N.Y. Jan. 28, 2003). However, "every Circuit to consider the question . . . has concluded that the PLRA's exhaustion requirement is not jurisdictional." Id. (citing decisions from the D.C. Circuit and the 1st, 3d 5th, 6th, 7th, 8th, and 9th Circuits). But there is district court authority in the Second Circuit to the effect that the issue is not jurisdictional. Arnold v. Goetz, 245 F. Supp.2d 527, 531 (S.D.N.Y. 2003).

Defendants' application to dismiss the complaint for lack of subject matter jurisdiction is denied. [ Page 6]

The Merits

The Prison Litigation Reform Act of 1995 (PLRA) states:

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 exhausted.
42 U.S.C. § 1997e(a). The Supreme Court has held that "the PLRA's exhaustion requirement applies to all inmate suits against 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 (2002). This Circuit had held that the PLRA exhaustion requirement did not apply to § 1983 claims alleging excessive force. Nussle v. Willette, 224 F.3d 95, 106 (2d Cir. 2000). Porter reversed Nussle. Although plaintiff's complaint was filed prior to the decision in Porter, that decision should be applied to plaintiffs case retroactively. Mack v. Artuz, No. 01 Civ. 11832, 2002 WL 31845087, at *3 n. 2 (S.D.N.Y. Dec. 19, 2002).

Applying the PLRA to the present case, it is clear that an administrative remedy, in the form of a grievance procedure, was available to plaintiff at Sing Sing to complain about the alleged beating of March 23, 1999, and the alleged improper disciplinary hearing held thereafter. Plaintiff has not [ Page 7]

made use of this procedure. The grievance which he did file dealt with a different matter and was against persons not sued in the present action.

Conclusion

The application to dismiss the action for lack of subject matter jurisdiction is denied. Dealing with the merits, the court grants defendants' motion for summary judgment dismissing the action for failure to exhaust prison administrative remedies.

SO ORDERED. [ Page 1]

20030826

© 1992-2003 VersusLaw Inc.



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