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SPROUL v. FARRELL

January 27, 2004.

JEFF SPROUL, Plaintiff -against- R.N. WENDY FARRELL; C.O. RODRIGUEZ RICKY; C.O.J. GROCE; C.O.J. WASSWEILER; C.O. JEFFREY THEISS; C.O. GILSENAN JAKE; C.O. NEDEROST, PAUL; MISS J. MANY, Correctional Counselor; SGT. M. ZACCAGNINO; SGT. M. CAPRA; LT. V. LOPPICCOLLO; Senior Corr. Counselor C. GOOD; LT. H. MOST, Defendants


The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge

REPORT AND RECOMMENDATION

Jeff Sproul, a prison inmate at the Southport Correctional Facility ("Southport"), brings this action pursuant to 42 U.S.C. § 1983, alleging that the defendants violated his civil rights. The plaintiff contends that the defendants used excessive force against him, retaliated against him for filing a grievance, and denied him medical care. The defendants have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the following reasons, I recommend that the motion be granted.

Background

  Mr. Sproul was previously housed in the Fishkill Correctional Facility ("Fishkill"), where the events giving rise to the Amended Complaint occurred. According to an incident report filed by Page 2 Lieutenant Vincent LoPiccolo on February 2, 1999, Mr. Sproul was scheduled to appear in court that day, but he, along with his cell-mate, Diamond Catten, refused to leave their cell. (Letter from Lieutenant LoPiccolo to R. Ercole, Deputy Superintendent Security dated Feb. 2, 1999 ("LoPiccolo Report"), attached as Exh. E to Plaintiff's Memorandum of Law and Argument in Support of Motion for Cross [sic] of Defendant's Motion and Summary Judgment ("Pl. Memo."), at 1). Attempts were made by a Sergeant Capra, Joanne Many, and a Nurse Webber to convince the inmates to leave their cell, but all efforts to gain their compliance failed. (LoPiccolo Report at 1). Both inmates broke food trays, allegedly to use the broken pieces as weapons. (Amended Complaint ("Am. Compl.") at appended page 4c)*fn1 The court order for Mr. Sproul's appearance was subsequently withdrawn, and Mr. Sproul and Mr. Catten passed many of the broken pieces of the trays to the officers through the bars of the cell. (LoPiccolo Report at 1). The officers noticed, however, that other pieces were still missing, and they observed that Mr. Catten was hiding some shards under his armpit. (LoPiccolo Report at 1). Lieutenant LoPiccolo then realized that Mr. Sproul and Mr. Catten were attempting to remove a handrail from Page 3 the cell wall, potentially to use as a weapon as well. (LoPiccolo Report at 1). According to Lieutenant LoPiccolo, "[b]ecause of the inmates['] demonstrated and continuing attempts to remove the handrail, and further arm themselves with more weapons, the decision was made to execute the extraction," i.e., remove them from the cell. (LoPiccolo Report at 1). Correctional Officers J. Wassweiller, Paul Nederost, J. Croce, Jeffrey Theiss, John Gilsenan and Ricky Rodriguez, along with a Sergeant Zaccagnino, went in to effect the removal. (LoPiccolo Report at 1).

  Mr. Sproul alleges that numerous incidents of excessive force occurred during the course of the extraction. He claims that Officer Rodriguez "dragged my body to the floor and placed me in a head lock choke hold with both his forearms real tight applied to my neck." (Am. Compl. at 4). He also claims that Officer Theiss was "striking my face and head with punches," while Officer Gilsenan twisted his leg. (Am. Compl. at 5). He further claims that Officer Nederost "punch[ed] my head" and that Officer Croce kicked him. (Am. Compl. at 5). He contends that following the extraction, Lieutenant LoPiccolo ordered Wendy Farrell, a nurse at the facility, to deny him medical care. (Am. Compl. at 5). Following the incident, Officer Rodriguez filed an Inmate Misbehavior Report, charging Mr. Sproul with unruly behavior and possession of a weapon. (Am. Compl. at 4c). After a disciplinary hearing, Mr. Sproul was sentenced to serve one year in the Special Page 4 Housing Unit, and it was recommended that he lose one year of good time credit. (Am. Compl. at 4c-d).

  Mr. Sproul claims that as a result of the incident he received a head injury, facial injuries, a "broken fractured nose," wrist and facial bruises, and a swollen ankle. (Am. Compl. at 5). In a report filed on February 2, 1999, Nurse Farrell said that she had examined Mr. Sproul and found no injuries or redness. (Use of Force Report by Wendy F. Farrell dated Feb. 2, 1999, attached as Exh. B to Pl. Memo.). Mr. Sproul now seeks compensation and punitive damages in the amount of $180,000.00. (Am. Compl. at 6).

 Discussion

  The defendants have moved for judgment on the pleadings dismissing the Amended Complaint on the ground that Mr. Sproul has not exhausted available administrative remedies.

  A. Standard for Motion for Judgment on Pleadings

  The standard for evaluating a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure is the same as that used in evaluating a motion to dismiss for failure to state a claim under Rule 12(b)(6). Irish Lesbian and Gay Organization v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998); Encarnacion ex rel. George v. Barnhart, 191 F. Supp.2d 463, 469 (S.D.N.Y. 2002), aff'd, 331 F.3d 78 (2d Cir. 2003). The court must accept the allegations of the plaintiff's complaint as true, and draw all reasonable inferences in the plaintiff's favor. Page 5 Irish Lesbian and Gay Organization, 143 F.3d at 644; see also Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999); Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). Accordingly, the complaint may not be dismissed "unless it appears 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 (1957). These principles are even more strictly applied where the plaintiff alleges civil rights violations, Hernandez, 18 F.3d at 136; Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991), and where he is proceeding pro se. Haines v. Kerner, 404 U.S. 519, 520 (1972); McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999).

  B. Failure to Exhaust

  Under the Prison Litigation Reform Act (the "PLRA"), "[n]o action shall be brought with respect to prison conditions under . . . [42 U.S.C. § 1983], 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). "Only upon . . . a final determination is an inmate deemed to have exhausted his administrative remedies." Parkinson v. Goord, 116 F. Supp.2d 390, 394 (W.D.N.Y. 2000) (citation omitted). As the Supreme Court Page 6 recently made clear, the PLRA "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes." Porter v. Nussle, 534 U.S. 516, 532 (2002).

  New York's Inmate Grievance Program is a three-step process that prisoners must exhaust before filing a complaint in federal court. See N.Y. Correction Law § 139; 7 N.Y.C.R.R. § 701 et seq.; see also Cruz v. Jordan, 80 F. Supp.2d 109, 117-18 (S.D.N.Y. 1999). First, an inmate must file a complaint with the Inmate Grievance Resolution Committee ("IGRC") within 14 days of the alleged event. 7 N.Y.C.R.R. § 701.7(a)(1). The IGRC must then investigate and either resolve the issue informally or hold a formal hearing within seven days. 7 N.Y.C.R.R. § 701.7(a)(3). Once the inmate receives a written response from the IGRC, he may, if he is dissatisfied, appeal to the superintendent of the facility within four days of the IGRC's action. 7 N.Y.C.R.R. § 701.7(b)(1). Finally, after receiving a response from the superintendent, the prisoner may appeal that decision to the Central Office Review Committee ("CORC") within four days of its receipt. 7 N.Y.C.R.R. § 701.7(c)(1). CORC, in turn, must render a decision within 20 days. 7 N.Y.C.R.R. § 701.7(c)(4).

  The defendants argue that Mr. Sproul failed to take any steps to complete the grievance process in relation to all of his claims, including the retaliation claim, the excessive force claim, and the failure to provide medical attention claim. (Defendants' Page 7 Memorandum of Law in Support of Motion to Dismiss the Complaint ("Def. Memo.") at 8). The defendants attach an affidavit from Thomas Eagen, the Director of the Department of Correctional Services Inmate Grievance Program, stating that a review of the CORC's records ...


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