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United States district Court, S.D. New York

February 27, 2004.


The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge


Kenyaitta Benjamin Foreman, proceeding pro se*fn1, brings this action pursuant to 42 U.S.C. § 1983, alleging violations of his federal constitutional rights. He asserts that approximately Page 2 fifty defendants — including the top management, supervisors, officers and employees of the New York State Department of Corrections ("DOCS") violated his rights while he was incarcerated at Green Haven Correctional Facility ("Green Haven") in Dutchess County, New York.*fn2 Defendants now move to dismiss plaintiff's sixty — five page Amended Complaint pursuant to Rules 8 and 12(b)(6) of the Federal Rules of Civil Procedure ("Rules").*fn3 Defendants argue that the "meandering" and "vertiginous" style of the Complaint violates Rule 8 and that plaintiff failed to exhaust his administrative remedies as required under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). See Memorandum of Law in Support of Motion to Dismiss the Amended Complaint ("Def. Mem.") at 5, 9-10.

  For the reasons set forth below, defendants' motion is denied in part and converted in part into a Rule 56 motion for summary judgment on the issue of plaintiff's exhaustion of Page 3 administrative remedies.


  Plaintiff's original Complaint was received by this Court's Pro Se Office on September 20, 2001. By Order dated September 6, 2002 ("Order"), Chief Judge Michael B. Mukasey: (1) granted plaintiff's request to proceed in forma pauperis; and (2) directed plaintiff to file an amended complaint and cure the defects outlined in the Order. See Order at 2. Plaintiff filed an Amended Complaint on October 30, 2002, and the matter was reassigned.

  Plaintiff's handwritten Amended Complaint includes a 101-paragraph "Statement of Claims" section ("Am. Compl. Claims") and a 15-paragraph "Causes of Action" section ("Am. Compl. Causes"), and requests both injunctive and monetary relief. Plaintiff claims that defendants violated his First, Fourth, Sixth, Eighth, and Fourteenth Amendment rights while he was incarcerated at Green Haven in 2001 and 2002.*fn4 Plaintiff also claims to have exhausted his administrative remedies pursuant to New York's prisoner grievance procedure.

  A. Claims Allowed Page 4

  Plaintiff has sufficiently pleaded the following claims in his Amended Complaint.*fn5

  1. Eighth Amendment

  In support of his Eighth Amendment claims, plaintiff describes in detail several incidents involving excessive force by multiple defendants, including beatings by correctional officers on May 22 and July 7, 2001 and on at least two other occasions. See, e.g., Am. Compl. Claims ¶¶ 30, 51-58, 64, 66, 87, 101; Am. Compl. Causes ¶ 6. For example, plaintiff alleges that on May 22, 2001, he was punched in the lower back by defendants Montegari, Trombley, and Welch, and suffered extreme pain because of past kidney and liver problems. See Am. Compl. Claims ¶ 30. He also claims that his requests for medical attention after the incident were denied by defendant Thornton. See id. ¶ 37.

  Plaintiff also alleges that on July 7, 2001, he was ordered out of his cell, handcuffed and subjected to a rough pat frisk by defendant Henschel, tripped or stomped to the cement ground, and kicked and beaten in the head, back, and stomach by defendants Henschel, Norton, and Daly. See id. ¶¶ 51-58. Plaintiff also claims that he suffered wrist lacerations and nerve sensitivity during this incident because defendants had Page 5 handcuffed him too tightly. See id. ¶ 64. He also describes mistreatment by defendant Mitchell and another correctional officer as they escorted him to the prison hospital after the beating. See id. ¶ 65-66. Plaintiff further claims that he was subsequently denied adequate medical care by defendants Rodas and Figueroa and that his requests to defendants Superintendent Greiner and Commissioner Goord for x-rays and other treatment for the July 7 beating were denied. See id. ¶¶ 68-70.

  Finally, plaintiff alleges that he was the victim of physical attacks by unidentified correctional officers on an unspecified date after July 7, 2001, and by defendant Norton and another correctional officer in May 2002. See id. ¶¶ 87, 101.

  2. First Amendment

  In support of his First Amendment claims, plaintiff alleges that defendants tampered with his mail and interfered with his access to legal materials and to the courts. See, e.g.. id. ¶¶ 13-14, 20, 81, 86, 94. Plaintiff claims, for example, that defendant Daily refused to help plaintiff obtain law library services. See id. ¶ 14. He also claims that he was denied the right to make copies by a law library officer and by defendant Greiner. See id. ¶ 81.

  3. Fourth Amendment

  Plaintiff claims his Fourth Amendment rights were violated when defendants Henschel, Norton, and Daly seized legal Page 6 work and photos from him before beating him on July 7, 2001. See id. ¶¶ 53, 62, Am. Compl. Causes ¶ 3. Plaintiff alleges that these defendants failed to provide a contraband receipt for the property and that plaintiff subsequently filed grievances to defendants Greiner and Haponik for property rights violations. See Am. Compl. Claims ¶¶ 62-63.

  4. Fourteenth Amendment

  In support of his Fourteenth Amendment due process claims, plaintiff alleges denial of access to legal materials and to the courts, as described above, as well as violations by hearing officers in disciplinary procedures and wrongful confinement. See, e.g., id. ¶¶ 13-14, 38-40, 43. Plaintiff claims, for example, that defendant Hearing Officer Keyser refused to investigate plaintiff's claims with regard to misbehavior reports filed against plaintiff (for improper mail correspondence and other violations on May 22, 2001) and failed to render a speedy disposition of the matter. See id. ¶¶ 38-40. As a result, plaintiff claims, he was unlawfully confined to a cell for three weeks until a subsequent hearing was held in June 2001 and he was cleared of the charges. See id. ¶ 43.

  5. Sixth Amendment

  Finally, in support of his Sixth Amendment claims, plaintiff alleges he was denied notice of and the right to present witnesses at a disciplinary/grievance hearing on July 12, Page 7 2001 before defendant Hearing Officer Maddox.*fn6 See Am. Compl. Causes ¶ 5, Am. Compl. Claims ¶ 69.

  B. Status of Defendants

  The following defendants remain in the case because they are named in the "Claims Allowed" and because they have been served: Goord, Greiner, Keyser, Thornton, Daily, Trombley, Daly, Henschel, Norton, Rodas, Mitchell, Maddox, Welch, Montegari, and unknown correctional officers. Although Figueroa is named in one of the surviving claims, he has never been served. Therefore, the claim against him is dismissed pursuant to Federal Rule of Civil Procedure 4(m). A person named "Officer Keheler" is mentioned in one of the surviving claims. See Am. Compl. Claims ¶ 101. He is not named as a defendant and has not been served.

  The following Defendants are not mentioned in the "Claims Allowed" although they have been served. Because plaintiff has failed to state a claim against these defendants, they are hereby dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6): Selsky, Ollerenshaw, Morton, Butenhoff, two unnamed PSU Unit Chiefs, Thompson, Ward, Mapes, Russett, Hormozy, Ingenito, Schneider, Totten, Schearing, Haponik, Tillotson, Demunda, Sarles, Lawyer, Schwartzman, Proper, Elcox, Mills, Page 8 Centanni, Tierney, Braun, Challard (or Schaller), Lindsay, Meg or Peg, Huttel. The following defendants, who are not mentioned in the "Claims Allowed" and have not been served, are dismissed both under Rule 4(m) and Rule 12(b)(6): Richards, Thatcher, Absinni, Thacker, Corbell, McClaine. Finally, the following two defendants, Lyder and Vinson, are not named in the "Claims Allowed" and have not been served, although they have moved for dismissal. Their motion is also granted.

  C. Administrative Relief

  In the short — answer introductory section of the form Amended Complaint ("Am. Compl. Intro."), plaintiff claims generally to have presented his complaints through the State's grievance procedure and to have "exhausted his administrative remedies at CORC Albany offices as required," referring to the DOCS Central Office Review Committee. Am. Compl. Intro. § II. Plaintiff also alleges throughout the body of the Complaint that he filed grievances and pursued administrative remedies for at least some of the claimed violations. See, e.g., Am. Compl. Claims ¶¶ 8, 10, 21, 37, 45, 46, 63, 69-79, 85-86, 91.


  A. Rule 8

  Rule 8 provides that a complaint shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). As the Second Page 9 Circuit has explained:

The statement should be plain because the principal function of pleadings under the Federal Rules is to give the adverse party fair notice of the claim asserted so as to enable him to answer and prepare for trial. The statement should be short because `[u]nnecessary prolixity in a pleading places an unjustified burden on the court and the party who must respond to it because they are forced to select the relevant material from a mass of verbiage.'
Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1281 at 365 (1969)) (internal citations omitted).

  When a complaint does not comply with Rule 8, the court may dismiss the complaint or strike those portions that are redundant or immaterial. See Fed.R.Civ.P. 12(f); Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2d Cir. 1995). Dismissal for failure to comply with Rule 8, however, is disfavored and is "usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised." Salahuddin, 861 F.2d at 42.

  Finally, where a plaintiff proceeds pro se, the court must "`read his supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest.'" Soto v. Walker. 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). The court must hold the allegations of a pro se plaintiff, "however inartfully Page 10 pleaded," to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972)(per curiam).

  B. Rule 12(b)(6)

  A motion to dismiss pursuant to Rule 12(b)(6) should be granted 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." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Weixel v. Board of Educ. of the City of New York. 287 F.3d 138, 145 (2d Cir. 2002). At the motion to dismiss stage, the issue "`is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.'" Phelps v. Kapnolas, 308 F.3d 180, 184-85 (2d Cir. 2002) (quoting Chance v. Armstrong. 143 F.3d 698, 701 (2d Cir. 1998)).

  The task of the court in ruling on a Rule 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." Pierce v. Marano, No. 01 Civ. 3410, 2002 WL 1858772, at *3 (S.D.N.Y. Aug. 13, 2002) (internal quotation marks and citations omitted). When deciding a motion to dismiss, courts must accept all factual allegations in the Page 11 complaint as true, and draw all reasonable inferences in plaintiff's favor. See Chambers v. Time Warner, Inc. 282 F.3d 147, 152 (2d Cir. 2002).

  In addition, because "most pro se plaintiffs lack familiarity with the formalities of pleading requirements, [courts] must construe pro se complaints liberally, applying a more flexible standard to evaluate their sufficiency." Lerman v. Board of Elections in the City of New York, 232 F.3d 135, 140 (2d Cir. 2000) (citing Hughes v. Rose. 449 U.S. 5, 9-10 (1980) and Haines v. Kerner, 404 U.S. at 520-521). Finally, courts must remain "mindful of the care exercised in this Circuit to avoid hastily dismissing complaints of civil rights violations." Gregory v. Daly. 243 F.3d 687, 691 (2d Cir. 2001).


  A. Motion to Dismiss Under Rule 8

  Defendants argue first that plaintiff's Amended Complaint should be dismissed in its entirety for failure to meet the "short and plain statement" requirements of Rule 8. See Def. Mem. at 4. Although defendants admit that the Complaint "may contain substantial allegations of constitutional torts," they argue that "its style and structure, or lack of it, completely obscures" such allegations. Id. at 4-5.

  A liberal reading of plaintiff's 50 — page handwritten Complaint, however, refutes defendants' claim that it is Page 12 "impossible to tease out . . . intelligible allegations of constitutional violations to which defendants can meaningfully respond." Id. at 4. Although not a model of clarity or brevity, the Complaint is not so muddled or indefinite as to deny defendants meaningful notice of many of plaintiff's claims. As in Salahuddin v. Cuomo, plaintiff's complaint "is neither vague nor incomprehensible, and it clearly pleads at least some claims that cannot be termed frivolous on their face." 861 F.2d at 43.

  In Salahuddin, the Second Circuit remanded to the district court with instructions to allow the pro se plaintiff an opportunity to file an amended complaint that omitted unnecessary detail. Id. The court cautioned, however, against dismissing even an amended complaint that did not "satisfactorily condense the pleading," and reminded the district court that it remained free, under Rule 12(f), "simply to strike so much of the amended complaint as it deem[ed] redundant or immaterial." Id.

  While plaintiff's complaint suffers from a prolixity that would certainly justify an exercise of the Court's discretion to require further amendment or to strike redundant or immaterial portions, it does not warrant dismissal under Rule 8. The Amended Complaint provides defendants with adequate notice of the claims identified above as "Claims Allowed" and enumerated in the Court — prepared chart. Accordingly, the motion to dismiss based on a violation of Rule 8 is denied. Page 13

  B. Motion to Dismiss Under Rule 12(b)(6) for Failure to Exhaust Administrative Remedies

  Defendants also argue that plaintiff failed to exhaust administrative remedies before bringing this action as required by the Prisoner Litigation Reform Act ("PLRA"). As a result, defendants seek dismissal under Rule 12(b)(6) for failure to state a claim. See Def. Mem. at 5-10.

  The PLRA states that " [n]o action shall be brought with respect to prison conditions under section 1983 of this title . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). This requirement "applies to all inmate suits about 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).

  DOCS has created a three — tiered grievance process for all prisoner complaints. See N.Y. Comp. Codes R. & Regs. tit. 7, § 701.7. First, an inmate must file a grievance with the Inmate Grievance Resolution Committee (the "IGRC"), which is composed of fellow inmates and various prison officials. See id. § 701.7(a). Second, if the inmate is dissatisfied with the IGRC decision, he must appeal to the superintendent of the facility. See id. § 701.7(b). Third, if the inmate does not receive a favorable decision from the superintendent, he must appeal to the Central Office Review Committee ("CORC"). See id. § 701.7(c). The Page 14 superintendent's response at the second level must provide "simple directions on how this decision may be appealed" to the CORC. Id. § 701.7(b)(5). The grievance process is then complete and the inmate, if still dissatisfied, may bring a complaint in the appropriate court. See Hemphill v. New York. 198 F. Supp.2d 546, 548 (S.D.N.Y. 2002).

  The Second Circuit considers failure to exhaust administrative remedies an affirmative defense. See Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir. 1999). Accordingly, defendants bear the burden of showing non — exhaustion and the "issue of exhaustion is generally not amenable to resolution by way of a motion to dismiss." Nicholson v. Murphy, No. 302 CV 1815, 2003 WL 22909876, at *6 (D. Conn. June 16, 2003). An exception to this rule is that a court may dismiss a complaint where failure to exhaust under the PLRA is "readily apparent" or "unambiguously established in the record," as long as the court provides plaintiff with notice and an opportunity to be heard on the issue. Snider v. Melindez, 199 F.3d 108, 111-14 (2d Cir. 1999); see also Neal v. Goord, 267 F.3d 116, 123-24 (2d Cir. 2001) (suggesting that "[s]ince the availability of administrative remedies for an inmate's particular grievance is typically not clear from the face of a complaint, the better practice in a given case may be to afford notice and an opportunity to respond before dismissal when exhaustion is the Page 15 basis for that action.").

  Plaintiff's Complaint alleges full exhaustion in general terms and provides some details of compliance with the required grievance procedures. See, e.g., Am. Compl. Intro. § II, Am. Compl. Claims ¶¶ 21, 77, 86. Defendants, on the other hand, provide no evidence of non — exhaustion and argue only that plaintiff "does not correlate his `complaints' with the numerous incidents he appears to describe . . . nor does he indicate the results of any grievance or appeal." Def. Mem. at 9-10.

  Where a failure to exhaust administrative remedies is not "readily apparent from [the] plaintiff's pleadings and/or attachments," courts in this Circuit have converted motions to dismiss for failure to exhaust to motions for summary judgment, pursuant to Rule 12(b). Torrence v. Pesanti, 239 F. Supp.2d 230, 233 (D. Conn. 2003); see also Arnold v. Goetz, 245 F. Supp.2d 527, 540-41 (S.D.N.Y. 2003); McCoy v. Goord, 255 F. Supp.2d 233, 251 (S.D.N.Y. 2003).

  Because the question of exhaustion of administrative remedies must be addressed before the Court can consider the merits of plaintiff's claims, defendants must have an opportunity to develop this defense at the earliest time. Under Rule 12(b), where such a matter "outside the pleading [is] presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." Fed. Page 16 R. Civ. P. 12(b). The Rule further directs the court to give all parties "reasonable opportunity to present all material pertinent to such a motion by Rule 56." Id. In practice, conversion is required whenever there is a "legitimate possibility" that the district court will rely on material outside the pleadings. Amaker v. Weiner, 179 F.3d 48, 50 (2d Cir. 1999); see also Friedl v. City of New York, 210 F.3d 79 (2d Cir. 2000). Here, defendants' motion to dismiss based on failure to exhaust administrative remedies must be converted into a motion for summary judgment.


  For the foregoing reasons, defendants' motion to dismiss pursuant to Rule 8 is denied. Defendants' motion to dismiss pursuant to Rule 12(b)(6) is converted to a motion for summary judgment. Defendants are directed to submit evidence on plaintiff's failure to exhaust administrative remedies with regard to plaintiff's surviving claims, identified above and in the attached chart, by April 5, 2004. Plaintiff must respond by May 15, 2004. Defendants' reply, if any, is due on or before June 5, 2004.

  Because plaintiff is proceeding pro se and the Court is converting the motion to dismiss to a motion for summary judgment, the Court has a duty to advise plaintiff that all assertions of fact in any affidavits and other documents that Page 17 defendants might file in support of their motion for summary judgment will be taken as true unless the plaintiff counters them with his own documentary evidence, pursuant to Rule 56(e).*fn7 McPherson v. Coombe, 174 F.3d 276, 281 (2d Cir. 1999). Plaintiff is advised to read the attached Notice for Pro Se Litigants Regarding Opposition to a Summary Judgment Motion.

  The Clerk of the Court is directed to close this motion to dismiss. A conference is scheduled for March 9, 2004 at 4:30 p.m.

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