United States District Court, S.D. New York
March 16, 2004.
KELVITT BURGESS, Plaintiff, -v- HENRY GARVIN, Superintendent, Dr. HERBERT E. GOULDING II, and BARBARA A. WILLIAMS, R.N/A.N., Defendants
The opinion of the court was delivered by: GERARD E. LYNCH, District Judge
OPINION AND ORDER
Plaintiff seeks reconsideration of the Court's August 25, 2003,
decision granting defendants summary judgment on grounds of failure to
exhaust administrative remedies, as required by the Prisoner Litigation
Reform Act ("PLRA"). 42 U.S.C. § 1997e. The Court adheres to its
prior ruling that Department of Justice (`'DOJ") remedies for
complaints under the Americans with Disabilities Act constitute an
administrative remedy for purposes of the PLRA exhaustion requirement,
but grants plaintiffs motion in order to permit additional fact discovery
on the issue of whether the DOJ complaint procedure constitutes an
"available" remedy in this case.
Plaintiff Kelvitt Burgess, a New York State prisoner, brought the
original action under 42 U.S.C. § 1983, the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12132, and Section 504 of the
Rehabilitation Act, 29 U.S.C. § 794, against various prison officials
and medical staff, claiming deliberate indifference to his medical needs
and failure to accommodate his disability.
On August 25, 2003, this Court granted defendants' motion for summary
judgment, holding that the plaintiffs failure to exhaust all
administrative remedies, as required by the PLRA, precluded his ADA
claim. Burgess v. Garvin, No. 01 Civ. 10994, 2003 WL 21983006,
at *3 (S.D.N.Y. Aug. 19, 2001), The plaintiff had filed and pursued
grievances with the New York State prison authorities, but had not
availed himself of the administrative remedy provided by DOJ for alleged
violations of the ADA by state agencies. See
28 C.F.R. § 35.170 et seq. The Court held that, based on the plain language
and intent of the statute, the PLRA's exhaustion requirement was not
limited to administrative redress within the prison system, but rather
required plaintiff to exhaust all available remedies. Burgess,
2003 WL 21983006, at *3.
Plaintiff, who had proceeded pro se until the time of the
Court's dismissal, is now represented by counsel. He filed a timely
motion under Federal Rule of Civil Procedure 59(e) and Local Rule 6.3 to
alter or amend the judgment, and under Federal Rule of Civil Procedure
60(b) for reconsideration, on the grounds that the interests of justice
and new evidence call for the Court to review its dismissal of his ADA
claims. In moving for reconsideration, the plaintiff advances two
arguments: first, that the PLRA requires exhaustion of internal prison
grievance procedures only, and not external procedures such
as the DOJ remedy (P. Mem. 7-10), and second, that the DOT
administrative remedy should not be considered an "available" remedy
under the PLRA. (P. Mem. at 15.)
In connection with this motion, plaintiff has brought to light new
evidence on the availability of the DOJ procedures. This evidence
consists of two letters from the DOJ to New York State prisoners in
response to their ADA complaints. In these letters, DOJ officials
indicate that limited resources and a "large volume of complaints"
prevent the DOJ from investigating individual prisoner complaints, except
where the Department is undertaking a review of the entire prison system
in which the prisoner is incarcerated. (P. Mem. at 15, Ginsberg Decl. Ex.
B.) Additionally, plaintiff offers evidence that New York State
Department of Correctional Services ("DOCS") does not make the DOJ
complaint process available and known to prisoners. Based on this
evidence, plaintiff argues that the DOJ remedy is not "available" because
DOJ does not act upon individual prisoner complaints (P. Mem. at 15-16,
P. Reply at 8), and because he had no notice of the DOJ procedure. (P.
Reply at 9, Ginsberg Decl. Supp. P. Reply at ¶ 8.)
I. Motion for Reconsideration Standard
In order to prevail on a Rule 59(e) motion,*fn1 the moving party must
present "[factual] matters or controlling decisions the court overlooked
that might materially have influenced its earlier decision." Griffin
Industries. Inc. v. Petrojam, Ltd., 72 F. Supp.2d 365, 368 (S.D.N.Y.
1999), quoting Robins v. Max Mara. U.S.A. Inc., 923 F. Supp. 460,
(S.D.N.Y. 1996) (alteration in original). A motion for reconsideration
may also be granted "to correct a clear error, or prevent manifest
injustice." Virgin Atlantic Airways. Ltd, v. Nat'l Mediation
Bd., 956 F.2d 1245, 1255 (2d Cir. 1992). A 59(e) motion may also
be granted in light of the availability of new evidence. Id.
Under Rule 59(e), a court's decision whether to grant a new trial is
committed to the discretion of the trial judge. See
McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983).
Similarly, Rule 60(b) of the Federal Rules of Civil Procedure allows
for relief from judgment in the case of "(1) mistake, inadvertence,
surprise, or excusable neglect; (2) newly discovered evidence . . .; (3)
fraud . . . misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void; (5) the judgment has been satisfied, released,
or discharged, . . .; or (6) any other reason justifying relief from the
operation of the judgment." Fed.R.Civ.P. 60(b); Nemaizer v.
Baker, 793 F.2d 58, 61 (2d Cir. 1986). A motion under Rule 60(b) is
addressed to the discretion of the trial court, and "should be broadly
construed to do substantial justice, yet final judgments should not be
lightly reopened." Id. (citations omitted).
II. Exhaustion of Administrative Remedies
The Court adheres to its prior ruling that the PLRA requires exhaustion
of the federal remedy. The PLRA provides, in relevant part: "No action
shall be brought with respect to prison conditions under-any federal law,
by a prisoner confined in any jail, prison, or other correctional
facility until such administrative procedures as are available are
exhausted." 42 U.S.C. § 1997e(a). While exhaustion of the DOJ remedy is not
a prerequisite to a private right of action for the public at large under
the ADA, See
28 C.F.R. § 35.172, App. A., the PLRA imposes such an exhaustion
requirement on prisoners. See Porter v. Nusslem,
534 U.S. 516, 523 (2002).
Plaintiffs argument that the PLRA requires exhaustion only of internal
prison procedures is without merit. Plaintiff is correct that most
courts, including this one, have focused on the three-step inmate
grievance procedure when discussing exhaustion requirements.
See 7 N.Y. Comp. Codes R. & Regs. tit. 7, § 701.7
(setting out the three-step procedure); McCoy v. Goord,
255 F. Supp.2d 233, 246 (S.D.N.Y. 2003); Kendall v. Kittles, No. 03
Civ. 628 (GEL), 2003 WL 22127135, at *3 (S.D.RY. Sept. 15, 2003).
However, the fact that the majority of prisoner complaints can be
exhausted through the internal procedure does not preclude the addition
of further compulsory steps for other types of complaints. A remedy
exists as a matter of law where the "administrative officers have
authority to take some responsive action with respect to the type of
allegations . . . raise[d]." See Booth v. Churner,
532 U.S. 731, 736 n.4 (2001). In this case, DOJ clearly has authority to
take some form of action. The statute's implementing regulations, which
direct the agency to "investigate each complete complaint, attempt
informal resolution, and if resolution is not achieved, issue to the
complainant and the public entity a Letter of Findings,"
28 C.F.R. § 35.172(a), clearly authorize the DOJ to receive, review, and act
on complaints alleging ADA violations. See also
28 C.F.R. § 35.170(a), 35.171(a) (outlining (a) (outlining complaint
Plaintiff raises no legal argument requiring departure from the Court's
prior determination that the PLRA demands exhaustion of ADA claims.
Porter v. Nussle, 534 U.S. 516 (2002), cited by plaintiff, is
not to the contrary. (See P. Mem. at 9.) In that case, the
Supreme Court explained that, "Congress enacted 1997e(a) to reduce the
quantity and improve the quality of prisoner suits; to this
purpose, Congress afforded corrections officials time and opportunity to
address complaints internally before allowing the initiation of a federal
case." Porter, 534 U.S. at 524-25. This statement is consistent
with this Court's original determination that the PLRA exhaustion
requirement is inclusive of the federal DOJ remedy. Burgess,
2003 WL 21983006, at *3. Requiring prisoners to file their complaints
with DOJ fulfills Congress's intent because it would either provide
prison officials more time to address complaints, or possibly lead to
negotiation or investigation by DOJ to secure compliance. If the matter
can be resolved without recourse to the federal courts, either through
internal grievance procedures or through DOJ intervention, then the
purpose of judicial economy is fulfilled. See Porter,
534 U.S. at 528; Booth v. Churnerm, 206 F.3d 289, 295 (3d Cir.
2000), aff'd 532 U.S. 731 (2001). Therefore, based on the
statutory language and intent, DOJ regulations establish an
administrative remedy for plaintiffs claim as a matter of law.
III. Availability of Remedy
A. Applicable Law
In Booth v. Churner, 532 U.S. 731 (2001), the Supreme Court
held that the PLRA requires administrative exhaustion regardless of
whether the administrative remedy actually provides the type of relief
the complainant seeks. In that case, the plaintiff sought money damages
under 42 U.S.G. § 1983 for a violation of his Eighth Amendment
rights. The Court upheld the Third Circuit's ruling that the plaintiff
was required to exhaust administrative remedies through the state's
grievance procedure, even though the procedure did not provide for money
damages. In reaching this conclusion, the Court relied on the fact that
Congress had amended the statute to remove the requirement that
an administrative remedy be "effective," reversing the Court's
prior interpretations of the statute. Id. at 740-41. The
exhaustion requirement is thus a strict one.
In giving substance to the requirement of exhaustion, however, courts
have recognized that the requirement that remedies be "available" may
soften the impact of a bright line rule. See
42 U.S.C. § 1997e. As the Supreme Court recognized in Booth. "the modifier
`available' requires the possibility of some relief for the action
complained of." Booth. 532 U.S. at 738; see also
Snider v. Melindez, 199 F.3d 108, 114 (2d Cir. 1999) ("A court may
not dismiss for failure to exhaust administrative remedies unless the
court determines that such remedies are available."). Courts have held
that remedies are not available where prisoners are not informed of their
existence. See Arnold v. Goetz 245 F. Supp.2d 527,
538 (S.D.N.Y. 2003) ("[A]n institution keeps an inmate ignorant of
the grievance procedure when correctional officials either fail to inform
him of the procedure altogether or fail to provide him with access to
materials which could otherwise educate him about use of that process");
see also Davis v. Milwaukee County, 225 F. Supp.2d 967,
976 (E.D. Wis. 2002) (absence of materials about the grievance
procedure at jail prevented the inmate from knowing how to exhaust his
administrative remedies and thereby interfered with his access to the
courts); Hall v. Sheahan, 2000 C. 1649, 2001 WL111019, at *2 (N.D. Ill.,
Feb. 2, 2001) ("A grievance procedure that is not made known to inmates
is not an `available' administrative remedy").
While the existence of a remedy is a matter of law, Snider,
199 F.3d at 114, courts in this District treat the question of whether an
administrative remedy is available as a mixed question of law and fact.
See, e.g. Arnold,* 245 F. Supp.2d at 538 ("[W]hen
an inmate claims ignorance of the grievance procedure, it becomes a
question of fact
whether the grievance procedure was an available administrative
remedy he was required to exhaust." (citations omitted)): Kendall v.
Kittles, No. 03 Civ. 628, 2003 WL 22127135, at *5 (S.D.N.Y. Sept
15, 2003) (holding that whether an administrative remedy was available to
a prisoner who claimed that he was refused grievance forms by prison
officials was a question of fact to be decided on summary judgment or at
trial); Alvarez v. United States, No. 98 Civ. 3179, 2000 WL
555738 at *2 (S.D.N.Y. May 8, 2000) (noting that a showing that a
prisoner was not "meaningfully informed" of administrative remedies could
establish that they were not available), on reconsideration. No. 98 Civ.
3179, 2000 WL 679009 (S.D.N.Y. May 24, 2000). Because exhaustion of
remedies is an affirmative defense, defendants bear the burden of proving
that the DOJ remedy is available to prisoners. Jenkins v.
Haubert, 179 F.3d 19, 28-29 (2d Cir. 1999). See
Stevens v. Goord, No. 99 Civ. 11669 (LMM), 2003 WL 21396665, at
*5 (S.D.N.Y. June 16, 2003).
B. Plaintiffs New Evidence
In support of his argument that the DOJ remedy is unavailable to
prisoners, plaintiff advances two arguments based on evidence that was
not before the Court upon consideration of defendants' summary judgment
motion. Plaintiff first offers two DOJ response letters to prisoner
complaints of disability-based discrimination. (Ginsberg Decl. Ex. B.) In
these letters, the Disability Rights Section of the DOJ indicates that
due to its "limited resources" and the "large number of complaints" it
receives, DOJ does not investigate individual prisoner complaints except
as a part of a review of the entire State prison system. (Id.)
Defendants admit that another such "limited resources" is the most likely
of a complaint to DOJ. (D. Mem. at 6.)
Such a letter, if it is indeed the inevitable response, may not
constitute an effective remedy indeed, it indicates that
attempting to obtain relief through DOJ channels may be entirely fufile.
However, Supreme Court precedent is clear that the match between the
remedies available through a designated complaint procedure and the
relief sought are immaterial to the PLRA's exhaustion requirement.
See Booth, 532 U.S. at 739. As the Court emphasized,
"we will not read futility or other exceptions into statutory exhaustion
requirements where Congress has provided otherwise. . . . Congress has
provided in § 1997e(a) that an inmate must exhaust irrespective of
the forms of relief sought and offered through administrative avenues."
Id. at 741 n.6 (citations omitted). In addition, while DOJ's
letters indicate that the agency does not investigate individual claims,
they also state that it does perform investigations into prison
conditions at a statewide level. Such an investigation, should it occur,
holds the "possibility of some relief for the plaintiff, however slim.
Id.. 738.*fn2 The "no action" letters plaintiff relies on
therefore make no difference to the outcome on the requirement of
Plaintiffs second argument, however, raises serious questions about the
availability of the remedy and requires the Court to reverse its prior
ruling on defendants' summary judgment motion. According to plaintiff,
the information that New York prisoners are provided on ADA grievance
procedures includes no mention of the DOJ procedures: "[b]oth the DOCS
directive concerning the reasonable accommodations procedure as well as
the poster that DOCS uses to notify prisoners of their rights under
the ADA mention only the internal DOCS procedures for filing
complaints about ADA violations." (P. Reply at 9; Ginsberg Decl. Supp. P.
Reply Exs. A & B.) If, as plaintiff asserts, these procedural
channels are not made known to prisoners, they are not an "available"
remedy in any meaningful sense; however firm Congress may have been in
its resolve to reduce meritless complaints and promote administrative
resolution of claims, it cannot have meant that prisoners would be
expected to exhaust remedies of which they were kept entirely ignorant.
And if, as defendants argue, the DOJ procedures are "an integral part of
the statutory scheme to implement the ADA" (D. Mem. at 9), then there
would be no justification for keeping prisoners ignorant of them, and
even less justification for raising an exhaustion defense if the State
does so. See Hall 2001 WL 111019, at *2 ("An institution cannot
keep inmates in ignorance of the grievance procedure and then fault them
for not using it.").
Plaintiffs new evidence has thus brought to light an issue of fact, of
which the Court was unaware when it granted summary judgment, as to
whether plaintiff had notice of these procedures. Although discovery in
this case was complete at the time of that decision, plaintiff, pro
se, did not take discovery on the issue of notice because he was
unaware that exhaustion of the DOJ remedy would be an issue until
defendants filed their Motion for Summary Judgment., The Court will
therefore reverse its prior decision granting summary judgment for
defendants and reopen the plaintiffs case in order to permit additional
discovery on this limited issue.
For the above reasons, the Court grants plaintiffs motion to
reconsider, denies defendants' motion for summary judgment, and reopens
discovery to afford the parties an
opportunity to explore the limited issue of whether information on
the DOJ complaint procedure for ADA claims was made available to the
plaintiff. The parties are directed to complete discovery on this issue
by Friday, June 18, 2004, and to attend a subsequent conference on that
date at 11:30 am