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WILLIAMS v. COONEY

March 8, 2004.

MICHAEL WILLIAMS, Plaintiff, -against- D. COONEY; D. GRIMA; TOTTEN, Captain; CHARLES GREINER; I.G.R.C. COORDINATOR; ROBERT J. MURPHY, Defendants


The opinion of the court was delivered by: RICHARD CASEY, District Judge

OPINION AND ORDER

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 Page 2 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.

 I. BACKGROUND

  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 Page 3 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 Page 4 relief may be granted and should be dismissed on the merits. Plaintiff subsequently filed a challenge to the timeliness of the objections.*fn2

 II. DISCUSSION

  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 Page 5 (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; ...


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