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United States District Court, S.D. New York

January 27, 2004.


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


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 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 Sproul's appearance was subsequently withdrawn, and Mr.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).


  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 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 Page 8 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 Page 9 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.

  3. Transfer

  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 Page 10 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. Page 11 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 of the Page 12 undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.

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