The opinion of the court was delivered by: RICHARD CASEY, District Judge
Pursuant to 42 U.S.C. § 1983, pro se plaintiff, Michael Williams
("Plaintiff"), brings this action against six employees of Green Haven
Correctional Facility: Deborah Cooney ("Cooney"); D. Grima ("Grima");
Captain Totten ("Totten"); Charles Greiner ("Greiner"); Inmate Grievance
Resolution Committee Coordinator ("I.G.R.C. Coordinator"); and Robert J.
Murphy ("Murphy") (collectively referred to as "Defendants"). The case
was referred to Magistrate Judge Katz; Defendants moved to dismiss the
complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). Defendants argued that Plaintiff's failure to exhaust
administrative remedies as required by the Prison Litigation Reform Act
("PLRA"), 42 U.S.C. § 1997e(a), deprives this Court of subject matter
jurisdiction, and that the allegations in Plaintiff's complaint fail to
state an actionable claim.
In a Report and Recommendation ("Report)" dated August 4, 2003,
Magistrate Judge Katz recommended that Defendants' motion to dismiss be
granted in part and denied in part. The Report recommended that the
motion to dismiss be granted with respect to Cooney, Grima, and Greiner,
pursuant to Rule 12(b)(6) for failure to state a claim. The Report also
recommended that this Court dismiss the claim against the I.G.R.C.
Coordinator pursuant to Rule 4(m) for failure to effect
service. As to the remaining defendants Totten and Murphy, the
Report recommended that the Court deny Defendants' motion to dismiss.
Totten and Murphy objected to the Magistrate's recommendation not to
dismiss the claims against them. Having considered the Report and
objections, this Court orders to dismiss with prejudice the claims
against Cooney, Grima, and Greiner for failure to state a claim.
Additionally, this Court orders to dismiss without prejudice the claims
against Totten and Murphy for failure to exhaust all administrative
remedies, as well as the claim against the I.G.R.C. Coordinator for
failure to effect service.
The background of this action is provided in detail in the Report and
therefore is only briefly recounted herein. Plaintiff alleged that each
of the five named defendants violated his constitutional rights in
response to an altercation that occurred on January 26, 2001 at Green
Haven Correctional Facility, where Plaintiff is incarcerated.
Specifically, the complaint alleged that: (1) Cooney subjected Plaintiff
to false misbehavior charges which resulted in a disciplinary hearing and
subsequent confinement; (2) Grima improperly testified at Plaintiff's
disciplinary hearing; (3) Greiner failed to preserve certain documentary
evidence for introduction at the disciplinary hearing and failed to
conduct an adequate investigation; (4) Totten conducted an unfair and
biased disciplinary hearing; and (5) Murphy conducted an improper review
of the disciplinary action against Plaintiff.
Defendants moved to dismiss the complaint pursuant to Rule 12(b)(1) and
Rule 12(b)(6). First, Cooney and Grima argued that Plaintiff did not
exhaust his administrative remedies against them as required by the PLRA
and Porter v. Nussle, 534 U.S. 516 (2002), and that therefore
this Court lacks subject matter jurisdiction. Moreover, Defendants
asserted that the entire action should be dismissed under the doctrine of
"total exhaustion," which requires that a complaint containing
any unexhausted claims should be dismissed in toto. Finally,
Defendants sought dismissal because Plaintiff's complaint failed to state
a claim against any defendant upon which relief may be granted.
In his Report, Magistrate Judge Katz concluded that Plaintiff did not
exhaust his administrative remedies against Cooney and Grima. However,
Magistrate Judge Katz concluded that, even if these claims were
exhausted, no court could provide relief because Plaintiff has failed to
state a claim against Cooney and Grima. Therefore, in the interest of
judicial economy, the Report recommended that the Court dismiss these
claims on the merits, rather than for failure to exhaust. Likewise, the
Report recommended dismissing the claim against Greiner for failure to
state a claim because Plaintiff did not adequately allege Greiner's
personal involvement in violating Plaintiff's constitutional rights.
Plaintiff did not object to these conclusions in the Report.
The Report further recommended that Defendants' motion to dismiss be
denied as to the due process claims against Totten and Murphy because
Magistrate Judge Katz concluded that Plaintiff exhausted his
administrative remedies against these two defendants. Totten and Murphy
raise three objections to this part of the Report.*fn1 First, they argue
that Plaintiff's complaint should be dismissed in its entirety under the
doctrine of total exhaustion, which requires the dismissal of an entire
complaint that contains both exhausted and unexhausted claims. Second,
they argue that, even without requiring total exhaustion, Plaintiff's
complaint must be dismissed for failure to exhaust because Plaintiff had
not exhausted his remedies as to either Totten or Murphy at the time the
original complaint was filed. Third, Totten and Murphy assert that, even
if the complaint is not dismissed for failure to exhaust, Plaintiff's
allegations against them do not state a claim upon which
relief may be granted and should be dismissed on the merits.
Plaintiff subsequently filed a challenge to the timeliness of the
A district court is permitted to adopt those portions of a Report to
which the parties do not object and with which the court finds no clear
error. See Pizzaro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y.
1991). The Court reviews de novo those parts of the Report to
which a party objects. Fed.R.Civ.P. 72(b).
A. Doctrine of Total Exhaustion
Totten and Murphy argue that Plaintiff's complaint should be dismissed
in its entirety because of the doctrine of total exhaustion. Total
exhaustion requires that every claim within a complaint must be
administratively exhausted in order for the entire complaint to withstand
dismissal. See Hattley v. Goord, 2003 WL 1700435, at *5
(S.D.N.Y. Mar. 27, 2003). Under this doctrine, a mixed complaint which
contains both exhausted and unexhausted claims will be dismissed in toto.
Id. The Second Circuit has not ruled on whether the PLRA
requires total exhaustion, or whether the district courts are permitted
to dismiss only the unexhausted claims while allowing the exhausted
claims to proceed. See Ortiz v. McBride, 323 F.3d 191, 195 (2d
Cir. 2003). The district courts of the Second Circuit are split on the
issue. Compare Rivera v. Pataki, 2003 WL 21511939, at *8
(S.D.N.Y. July 1, 2003) (dismissing mixed complaint entirely); Vidal
v. Gorr, 2003 WL 43354, at *1 (S.D.N.Y Jan. 6, 2003) (same); and
Saunders v. Goord, 2002 WL 1751341, at *3 (S.D.N.Y. July 29,
2002) (same), with Dimick v. Baruffo, 2003 WL 660826, at *5
(S.D.N.Y. Feb. 28, 2003) (dismissing only unexhausted claims); and
Dixon v. Goord, 224 F. Supp.2d 739, 749
(S.D.N.Y. 2002) (same). The Eighth Circuit has held that the PLRA
requires total exhaustion. See Graves v. Norris,
218 F.3d 884, 885-86 (8th Cir. 2000) ("When multiple prison condition claims
have been joined as in this case, the plain language of § 1997e(a)
requires that all available prison grievance remedies must be exhausted
as to all of the claims.").
This Court relies on the plain language of the PLRA which states that
"[n]o action shall be brought with respect to prison conditions under
§ 1983 of this title, 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). Because the statute expressly and unequivocally
states that no "action" shall be brought, and does not say that no
"claim" shall be brought, this Court agrees with the many district
courts which have concluded that the PLRA requires exhaustion of all
claims within an action in order for a complaint to proceed. See,
e.g., Graves, 218 F.3d at 885-86; ...