United States District Court, S.D. New York
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.
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
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subsequently withdrawn, and Mr.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
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
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
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).
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.
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
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'
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 revealed
no indication that the plaintiff ever grieved the February 2 incident.
(Affidavit of Thomas Eagen ("Eagen Aff.") dated July 2003, ¶ 3).
In his responsive papers, Mr. Sproul does not deny that he never
exhausted his administrative remedies. Rather, he proffers a number of
reasons for his failure to do so. He first claims that under § 1983,
he was not required to exhaust administrative remedies since his claims
deal with excessive force. (Pl. Memo, at 1st unnumbered page). He also
claims that he was not required to exhaust his administrative remedies
under the PLRA because the grievance process did not provide for monetary
relief. (Pl. Memo, at 1st unnumbered page). Finally, he claims that
after the incident occurred, he was transferred out of Fishkill to the
Southport Correctional Facility where he is currently housed, and was
thus unable to file a grievance. (Pl. Memo, at 2nd unnumbered page).
1. Excessive Force Claim
The PLRA amended 42 U.S.C. § 1997e to require that inmates exhaust
all available administrative remedies before bringing an action with
respect to prison conditions under § 1983 or any other
federal law. See Pub.L. No. 104-134, tit. VIII, §
803(d), 110 stat. 1321 (1996). There was formerly some question as to
whether the PLRA's exhaustion requirement reached suits involving
individual instances of prison misconduct, as opposed to prison
conditions generally. In Porter, 534 U.S. at 532, however, the
Supreme Court established that the exhaustion requirements did in fact
apply to claims of excessive force. Although Porter was decided
in 2002, and Mr. Sproul's first complaint was received by the pro
se office on May 3, 2001, the Court's decision is applicable to this
case. "When [the Supreme] Court applies a rule of federal law to the
parties before it, that rule is the controlling interpretation of federal
law and must be given full retroactive effect in all cases still open on
direct review and as to all events, regardless of whether such events
predate or postdate [the] announcement of the rule." Harper v.
Virginia Department of Taxation, 509 U.S. 86, 97 (1993).
Accordingly, the Second Circuit has applied Porter
retroactively. See Lawrence v. Goord, 304 F.3d 198, 200 (2d
Cir. 2002) (per curiam). Thus, the nature of Mr. Sproul's claim does not
excuse the failure to exhaust.
2. Monetary Relief
Similarly unavailing is Mr. Sproul's argument that because he is
seeking relief in the form of monetary damages, he need not exhaust. The
exhaustion requirement applies even when a plaintiff
seeks relief not available in prison administrative proceedings,
such as monetary damages. Booth v. Churner, 532 U.S. 731,
740-41 (2001); Sednev v. Haase, 00 Civ. 1302, 2003 WL 22110455,
at *3 (S.D.N.Y. Sept. 12, 2003)("Even when the prisoner seeks relief,
such as monetary damages, that is not available in grievance proceedings
exhaustion is still required before the commencement of a lawsuit.").
Mr. Sproul is not relieved of the obligation to exhaust his
administrative remedies simply because he sought monetary relief.
Mr. Sproul also contends that he did not exhaust his administrative
remedies because he was transferred from Fishkill to Southport
immediately after the incident on February 2, 1999. However, "New York's
Inmate Grievance Program contains provisions that allow prisoners to
pursue grievances even after their transfer out of the facility where
their claims arose." Timmons v. Pereiro, No. 00 Civ. 1278,
2003 WL 179769, at *2 (S.D.N.Y. Jan. 27, 2003); see also Delio v.
Morgan, No. 00 Civ. 7167, 2003 WL 21373168, at *3 (S.D.N.Y. Jun. 13,
2003). According to DOCS Directive No. 4040 (June 8, 1998), entitled
"Inmate Grievance Program," an inmate who is transferred to another
facility must still bring a grievance to an IGRC hearing. DOCS Directive
No. 4040 at 9; see also 7 N.Y.C.R.R. § 701.3(k)(2). If
the IGRC determines that the grievance is not moot and has not been
decided by the CORC within
the past year, then the grievance is forwarded to the
superintendent and CORC for final disposition. DOCS Directive No. 4040.
Mr. Sproul's transfer therefore does not excuse his failure to exhaust.
See Thomas v. Henry, 02 Civ. 2584, 2002 WL 922388, at *1-2
(S.D.N.Y. May 7, 2002) (action dismissed for failure to exhaust
administrative remedies, even though plaintiff was moved from a City
prison to a State facility); see also Santiago v. Meinsen,
89 F. Supp.2d 435, 440-41 (S.D.N.Y. 2000).
Mr. Sproul has not included any specific facts in his Amended Complaint
or subsequent reply papers demonstrating that he attempted to file a
grievance from Southport, but was thwarted by prison officials. Rather,
the plaintiff only states that he did not file a grievance because he was
removed from the facility soon after the incident. (Pl. Memo, at 2nd-3rd
unnumbered pages). His claims must therefore be dismissed for failing to
exhaust the available administrative remedies.
C. Form of Dismissal
The final question is whether the claims should be dismissed with or
without prejudice. "[I]f a district court dismisses a prisoner' s
complaint for failure to exhaust administrative remedies, it should do so
without prejudice." Morales v. Mackalm, 278 F.3d 126, 128 (2d
Cir. 2002) (per curiam). The relevant grievance procedures contain a
fourteen-day time limit for filing that would have passed by now. 7
N.Y.C.R.R. § 701(a)(1). Mr.
Sproul can, however, seek an exception: the IGRC supervisor may
waive the fourteen-day time bar based on mitigating circumstances if Mr.
Sproul can offer an explanation for his failure to file a timely
grievance. 7 N.Y.C.R.R. § 701(a)(1). If the time bar is waived and
the grievance processed, Mr. Sproul will have exhausted his
administrative remedies and will then by able to re-file this lawsuit and
proceed on the merits of his claim. Accordingly, the appropriate course
is to dismiss this action without prejudice, permitting Mr. Sproul to
seek an exception to the fourteen-day time limit. See Beeson v.
Fishkill Correctional Facility, 28 F. Supp.2d 884, 894 (S.D.N.Y.
1998) ("Statutory exhaustion requirements are mandatory, and courts are
not free to dispense with them.") (quoting Bastek v. Federal Crop
Insurance Corp., 145 F.3d 90, 94 (2d Cir. 1998)).
For the reasons set forth above, I recommend that the defendants'
motion for judgment on the pleadings be granted and the Amended Complaint
be dismissed without prejudice. Pursuant to 28 U.S.C. § 636(b)(1) and
Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the
parties shall have ten (10) days from this date to file written
objections to this Report and Recommendation. Such objections shall be
filed with the Clerk of the Court, with extra copies delivered to the
chambers of the Honorable Jed S. Rakoff, Room 1340, and to the chambers
undersigned, Room 1960, 500 Pearl Street, New York, New York 10007.
Failure to file timely objections will preclude appellate review.