United States district Court, S.D. New York
February 27, 2004.
KENYAITTA BENJAMIN FOREMAN, Plaintiff, -against- COMM. GOORD; D. SELSKY SHU DIR.; SUPT., GREINER; LT. KEYSER; C.O. OLLERNSHAW; D., THORNTON, SUPT. OF ADMIN.; CAPT. MORTON; C.O. BUTENHOFF; DAILY (PSU); 2 PSU UNIT CHIEFS; C.O. THOMPSON; C.O. TROMBLEY; C.O. DALY; C.O. HENSCHEL; C.O. NORTON; PROVIDER RODAS; SGT. WARD; C.O. MAPES; LT. RUSSETT; C.O. HORMOZY; SGT. T. INGENITO; C.O. MITCHELL; DEPUTY SUPT. RICHARDS; HEARING OFFICER MADDOX; C.O. SCHNEIDER; CAPT. TOTTEN; C.O. SHEARING; FIGUEROA MED. EXAMINER; THATCHER, COUNSELOR DEPT. SUPT. OF SECURITY; DR. ABSINNI; HAPONIK, DEPUTY OF ADMIN.; C.O. TILLOTSON; C.O. DEMUNDA; C.O. SARLES; C.O. LAWYER; DSS THACKER; C.O. CORBELL; SGT. SCHWARTZMAN; C.O. PROPER; C.O. ELCOX; C.O. WELCH; COUNSELOR MILLS; SHU SGT.'S & C.O.'S; C.O. MCCLAIN; SGT. MONTEGARI; SGT. CENTANNI; SGT. TIERNEY; C.O. BRAUN; SGT. SCHALLER; LINDA LINDSAY; RN MEG OR PEG; C.O. HUTTEL, Defendants
The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge
OPINION AND ORDER
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
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
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
Plaintiff has sufficiently pleaded the following claims in his Amended
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
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
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,
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,
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.
II. LEGAL STANDARDS
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
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
pleaded," to "less stringent standards than formal pleadings
drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520
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.
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
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.
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
"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.
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.
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
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
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.
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
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.