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United States District Court, Southern District of New York

September 15, 2003


The opinion of the court was delivered by: Gerard E. Lynch, District Judge


Plaintiff Cyril Kendall, an inmate at the Rikers Island Correctional Facility ("Rikers Island"), brings this action pro se against various corrections officers, the New York City Department of Corrections ("DOCS"), and the prison itself, alleging that he was denied medically-indicated housing and medically-indicated supplies required by a post-operative condition. Defendants move to dismiss, arguing that plaintiff has failed to exhaust administrative remedies pursuant to the Prison Litigation Reform Act. In the alternative, DOCS and Rikers Island move to dismiss on the grounds that they are nonsuable agencies of the City of New York. For the reasons that follow, the former relief will be granted and the latter denied. [ Page 2]


The facts alleged in the Complaint must be taken as true in deciding this motion to dismiss. From the time of the events in question and continuing to the present, the plaintiff was housed in the North Infirmary Command at Rikers Island in protective custody. (PL Opp. ¶ 5.) Plaintiff suffers from asthma, as indicated in a letter from his criminal defense attorney to the prison. (Compl. Ex. 2, Letter from Hugh G. Jasne to Warden Squalente [sic], dated Sept. 26, 2002.) Plaintiff alleges that in August 2002, he passed out several times due to inhaling secondhand cigarette smoke in his living area. As a result, Dr. Adriana Vives made a medical consultation request on August 26, 2002, to house plaintiff in a non-smoking dormitory. (Compl. Ex. 1.) Dr. Vives made another consultation request to the same effect on September 24, 2002. (Compl. Ex. 3.) Plaintiff claims that these requests were given to and ignored by defendants Squillante and Fraser, and that he continued to be housed in an area pervaded by second-hand smoke that made it difficult for him to breathe. In addition, plaintiff claims that his former attorney informed Warden Squillante that he needed to be placed in smoke-free housing by letter dated September 26, 2002. (Compl. Ex. 2.)

Dr. Vives made a third medical consultation request on October 4, 2002, requesting that plaintiff be permitted to keep bottled water and food in his cell, and be permitted access to filtered water and the water fountain. (Compl. Ex. 4.) Plaintiff claims that these requests were also ignored by the prison authorities, and that defendants Kittles, Charles, Johnson and Cunningham, who worked shifts in his dormitory, prevented him from accessing the water fountain. (Compl. IV-A.) [ Page 3]

In October 2002, plaintiff underwent outpatient surgery at Bellevue Hospital for a hemorrhoid condition. (Compl. IV-A). As a result of this surgery, plaintiff required medical supplies to care for himself. On November 11, 2002, Physician's Assistant Allen I. Walker made a medical consultation request that plaintiff be provided with change of dressing and extra sheets for privacy while performing bathroom functions. (Compl. Ex. 5.) Plaintiff alleges that this request was ignored by prison authorities. Plaintiff also claims that he required a private toilet and a toilet seat and alleges that requests for that were likewise ignored. (Compl. IV-A.)

Plaintiff alleges that as a result of the prison's refusal to accommodate his medical requests, he has been forced to live in a smoke-filled area that makes it difficult for him to breathe and causes dizziness and vomiting; he cannot take his medications with food and water as medically indicated; he has had to drink water from the bathroom sink which causes his scrotum to hemorrhage; and he experiences fainting spells, abdominal pain and rectal bleeding.

Plaintiff asserts that he attempted to bring his grievances to Grievance Coordinator Mohammed Akinlolu (not a defendant here), but that Officer Akinlolu informed him that his complaint was not a grievance and refused even to document such response. (Compl. ELC.2.) In his opposition to the motion to dismiss, plaintiff further asserts that he requested and was denied an interview with the Grievance Resolution Committee to discuss his requests to be housed in a non-smoking area and to keep food and water in his cell. (PL Opp. ¶ 11.) Plaintiff also argues that because he was housed in protective custody, he did not have access to the official grievance forms located in another part of the prison, and that corrections officers refused to supply him with grievance forms. (Pl. Opp. ¶ 6.) Plaintiff brought suit on January 8, 2003, seeking injunctive relief, as well as monetary compensation for his pain and suffering. [ Page 4]


I. Standard for Dismissal under Rule 12(W6)

On a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court must accept "as true the facts alleged in the complaint," Jackson Nat'l Life Ins. Co. v. Merrill Lynch & Co., 32 F.3d 697, 699-700 (2d Cir. 1994), and may grant the motion only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Thomas v. City of New York, 143 F.3d 31, 36 (2d Cir. 1998) (citations omitted); see also Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996) (when adjudicating motion to dismiss under Fed.R.Civ.P. 12(b)(6), the "issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims" (internal quotation marks and citations omitted)). When deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents attached to the complaint as exhibits or incorporated in it by reference. Brass v. American Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993).

All reasonable inferences are to be drawn in the plaintiffs favor, which often makes it "difficult to resolve [certain questions] as a matter of law." In re Independent Energy Holdings PLC, 154 F. Supp.2d 741, 747 (S.D.N.Y. 2001). The task of a court in ruling on a 12(b)(6) motion is "`merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) quoting Ryder Energy Distrib. Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984).

Furthermore, because "most pro se plaintiffs lack familiarity with the formalities of pleading requirements, [courts] must construe pro se complaints liberally, applying a more [ Page 5]

flexible standard to evaluate their sufficiency." Lerman v. Board of Elections in the City of New York, 232 R3d 135,140 (2d Cir. 2000) citing Hughes v. Rowe, 449 U.S. 5, 9-10 (1980). A pro se litigant's supporting papers must be read broadly and "interpret[ed] to raise the strongest arguments that they suggest." Soto v. Walker, 44 F.3d 169,173 (2d Cir. 1995) quoting Burgess v. Hopkins, 14 F.3d 787,790 (2d Cir. 1994).

II. Claims Against DOCS, Rikers Island and Unserved Defendants

The New York City Charter provides that "[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York and not in that of any agency, except where otherwise provided by law." N.Y. City Charter ch. 17 § 396. It is well established that the Department of Correction is an agency of the City of New York, and therefore may not be sued. See Winkfield v. New York City Dept. of Correction, No. 97 Civ. 2183 (HB), 1998 WL 778390, at * 1 (S.D.N.Y. Nov. 6, 1998) (dismissing claims against N.Y. DOCS because it is an agency of the City of New York.) The same reasoning applies to claims against Rikers Island, a facility under the direction of DOCS. Therefore, the claims against Rikers Island and DOCS are dismissed.

A review of the court's docket indicates that defendants Johnson and Cunningham were never served with process. Therefore, claims as against those defendants are dismissed.

III. Failure to Exhaust Administrative Remedies

The remaining defendants argue that plaintiff failed to exhaust available administrative remedies before bringing this action. The Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), provides that: [ Page 6]

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.
This case is governed by the PLRA's exhaustion requirement because an action for deliberate medical indifference is an action "with respect to prison conditions." See Harris v. N.Y.C. Dept. of Corrections, No. 00 Civ. 7164 (NRB), 2001 WL 845448, at *2 (S.D.N.Y. July 25, 2001) (noting consensus among courts). The Second Circuit has held that "where exhaustion is required, failure to do so must result in dismissal." Neal v. Goord, 267 F.3d 116, 117 (2d Cir. 2001). As a number of courts have detailed, prisoners in DOCS custody must complete a three-step inmate grievance procedure, including two levels of appeals, to exhaust their administrative remedies. See McCoy v. Goord, 255 F. Supp.2d 233, 246 (S.D.N.Y. 2003).

Plaintiff claims, however, that he did not fail to exhaust "available" administrative remedies, because prison officials (including non-defendant Akinlolu and dismissed-defendant Johnson) refused to make any administrative remedies available to him. Plaintiff claims that he was informed by Grievance Coordinator Akinlolu that his complaints concerning the prison's failure to accommodate his medical consultation requests were not grievable (Compl. II.C.2.), and that officials failed to provide him with grievance forms required by the prison's official grievance procedure (PL Opp. ¶¶ 9, 12).*fn1 [ Page 7]

Other judges in this district have found that where a prison fails to provide access to grievance forms, a prisoner's complaint cannot be dismissed for failure to exhaust available administrative remedies. See Feliciano v. Goord, No. 97 Civ. 263 (DLC), 1998 WL 436358 (S.D.N.Y. July 27, 1998) (denying dismissal on failure to exhaust grounds where corrections officers refused to provide inmate with grievance forms); Burns v. Moore, No. 99 Civ. 977 (LMM) (THK), 2002 WL 91607, at * 5 (S.D.N.Y. Jan. 24, 2002) (noting that "if an inmate is not allowed to file a grievance by prison authorities, a question exists as to whether he . . . had any available administrative remedies"). The plain language of the statute requires only "available" administrative remedies to be exhausted. See Miller v. Nonis, 247 F.3d 736, 740 (8th Cir. 2001) (holding "that a remedy that prison officials prevent a prisoner from utilizing is not an "available" remedy under § 1997e(a)" (internal quotations omitted)). Common sense and fundamental fairness support this reading. A custodian cannot prevent an inmate's access to a grievance procedure, thereby frustrating the inmate's attempt to resolve his complaints administratively, and then defend against the inmate's subsequent lawsuit by faulting the inmate for failure to exhaust the administrative process. Congress could not have intended the PLRA's administrative exhaustion requirement to produce such a Kafkaesque result. On similar reasoning, courts in this district have found that a custodian may be estopped from arguing that an inmate failed to exhaust administrative remedies where the custodian previously informed the inmate that the complaints are "non-grievable." See Feliciano, 1998 WL 436358, at *2; Davis v. Frasier, No. 98 Civ. 2658 (HB), 1999 WL 395414, at *4 (S.D.N.Y. June 15, 1999).

In response, defendants submit the affidavit of Officer Akinlolu, stating that he never denied grievance forms to the plaintiff, that forms are always available in the North Infirmary [ Page 8]

Command Library, and that forms may be obtained from his office during business hours from Monday to Friday. (Affidavit of Mohammed Akinlolu, sworn to July 24, 2003 ("Akinlolu Aff.") ¶¶ 1-3.) Defendants also argue that Kendall filed two grievances on unrelated complaints around the same time that he claims he was frustrated in his attempts to file grievances on the complaints at issue here. Defendants submit the affidavit of Arthur Harris, Director of the Inmate Grievance Resolution Program of the New York City Department of Correction, stating that plaintiff filed a grievance concerning his legal files and papers on September 11, 2002, and another grievance concerning withholding of his medication on February 3, 2003. (Affidavit of Arthur Harris, sworn to May 20, 2003 ("Harris Aff."), ¶ 3.) Defendants ask the Court to conclude that plaintiff did have access to grievance forms during the period in question and simply failed to file grievances regarding the medical consultation requests made in August through November, 2002.*fn2

These arguments, however, simply seek to controvert the allegations of the Complaint. The Complaint, liberally construed to include the supplementary allegations in plaintiffs opposition papers, alleges that plaintiff was refused access to forms. This assertion must be taken as true at this stage of the case; defendant's opportunity to present contrary evidence will come at a later stage. [ Page 9]

Dismissal for failure to exhaust administrative remedies is not appropriate where the plaintiff sufficiently alleges that he attempted to pursue internal remedies and that prison officials told him that his complaint could not be grieved and refused to provide him with the means to file a grievance. Defendants' may pursue the defense of failure to exhaust administrative remedies after discovery, on summary judgment or at trial. Taking plaintiff's allegations as true, however, this issue may not be resolved on the pleadings in this case.


For the foregoing reasons, the Complaint is dismissed as to defendants DOCS, Rikers Island, Johnson and Cunningham. The motion is denied as to all other defendants.


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