United States District Court, S.D. New York
December 17, 2004.
ANGEL MARTINEZ, Plaintiff,
P.A. WILLIAMS R., Defendant.
The opinion of the court was delivered by: WILLIAM CONNER, Senior District Judge
OPINION AND ORDER
Plaintiff Angel Martinez, proceeding pro se, commenced this
action against defendant P.A. Philip Williams, a physician
assistant who is an employee of the New York State Department of
Correctional Services ("DOCS"). Martinez alleges that he suffered
"multiple heart attacks" which Williams failed to diagnose.
Martinez further alleges that his undiagnosed heart attacks were
the cause of a "black out" which resulted in an eye injury. This
action arises under and is brought pursuant to 42 U.S.C. § 1983
to remedy the deprivation, under color of state law, of rights
guaranteed by the Eighth Amendment to the United States
Constitution, by subjecting plaintiff to the cruel and unusual
punishment of failing to provide him with adequate medical care.
Defendant now moves to dismiss plaintiff's Complaint pursuant to
FED. R. Civ. P. Rule 12(b)(6) for failure to state a claim upon
which relief may be granted. Defendant contends that the
Complaint should be dismissed on two asserted grounds: (1)
plaintiff's failure to exhaust his administrative remedies; and
(2) the untimeliness of the action, which was commenced after
expiration of the three-year statute of limitations. For the
reasons stated hereinafter, defendant's motion to dismiss is
I. Plaintiff's Factual Allegations
Plaintiff is incarcerated at the Sing Sing Correctional
Facility ("Sing Sing") serving a twenty-year sentence. (Complt. ¶
2.) While incarcerated, plaintiff complained of pain in his chest
and right arm.*fn1 (Id. ¶ 11.) On January 21, 2000,
defendant conducted an examination of plaintiff's chest and right arm, which plaintiff alleges was a "superficial
examination." (Id.) Defendant prescribed the medication
"issorbide hintrate" (sic) to relieve plaintiff's pain; however,
according to plaintiff the medication did not relieve his pain
and suffering. (Id. ¶ 12.) Plaintiff alleges that he filed
numerous sick-call requests to see defendant over several weeks,
but was "ignored." (Id.) On an unspecified date in February
2000, plaintiff was examined by defendant a second time and
continued to complain of severe chest and arm pain and also that
the medication was not relieving his pain. (Id. ¶ 13.)
Defendant suggested that plaintiff continue to take the
prescribed medication. (Id.) However, plaintiff alleges that
defendant "failed to properly examine or diagnose plaintiff's
pain and suffering." (Id.)
On February 7, 2000, while exiting his cell, plaintiff alleges
that he "blacked out" and fell to the floor unconscious. (Id. ¶
14.) As a result of the fall, plaintiff was taken to the
emergency room of the institution, where it was determined that
he sustained a severe right eye injury. (Id.) Plaintiff
contends that defendant improperly diagnosed his "black out" "as
the result of a common cold or `flu virus' . . . [and that he]
was then given flu medication and an ice pack for his eye injury,
and was placed on medical keep-lock status for five (5) days."
(Id.) Plaintiff further alleges that he continued to complain
about the pain in his chest, arm and right eye, but "in spite of
his constant requests for a full examination to relieve him of
his pain and suffering, P.A. Williams was `deliberately
indifferent' to plaintiff's serious medical needs." (Id. ¶ 15.)
On February 8, 2000, plaintiff again requested to be taken to
the emergency room as he was suffering from pain in his chest and
right eye. (Id. ¶ 16.) Plaintiff saw a nurse in the emergency
room and alleges that the only examination conducted at that time
principally consisted of timing his pulse rate and taking his
temperature. (Id.) According to plaintiff, no extensive
physical tests were conducted.
On February 11, 2000, plaintiff was examined by Dr. Halk at
Sing Sing, who, upon examination, transferred him to an outside
hospital (St. Agnes in White Plains, New York), where he was
eventually transferred to Westchester Medical Center for further
examination. (Id. ¶¶ 17, 18.) Plaintiff's right eye injury was
diagnosed as a fracture, and he underwent two surgeries to
reconstruct his face and correct the damage of his eye injury.
(Id. ¶ 19.) In addition, plaintiff alleges that the doctors at
Westchester Medical Center determined that his "black out" was
triggered or due to a heart attack, and upon examination, the
doctors discovered plaintiff had three blocked coronary arteries
that were causing the severe pain in his chest and arm. (Id. ¶¶
19, 20.) Medication was prescribed to alleviate the coronary
On February 21, 2000, plaintiff was discharged back to Sing
Sing where he remained in the facility hospital until March 20,
2000. (Id. ¶ 21.) Plaintiff is currently back in general
population at Sing Sing and allegedly continues to suffer from
constant pain in his chest and arm, and is taking prescribed
Plaintiff seeks "an order declaring that the defendant acted in
violation of the United States Constitution," "an injunction
compelling defendants [sic] to provide adequate medical
treatment" and $350,000 in compensatory damages. (Id. ¶¶ 22,
II. Procedural History
Plaintiff previously brought an action (Martinez v. Williams,
No. 01 Civ. 2642 (S.D.N.Y.)) against defendant based on the
alleged misdiagnosis of plaintiff's medical condition and the
ensuing consequences. See Martinez v. Williams,
186 F. Supp. 2d 353 (S.D.N.Y. 2002) ("Martinez I"). Martinez I was dismissed without prejudice by this Court for
failure to exhaust administrative remedies. On November 20, 2002,
this Court issued an Order reopening Martinez I to permit
plaintiff to file an Amended Complaint; however, that Order was
rescinded and the action was dismissed without prejudice.
(Complt. ¶ 7.) Plaintiff was instructed that to pursue his claim,
he must first exhaust his administrative remedies and then file a
new action. (Id.; Order dated December 6, 2002 ("Final
On July 10, 2003, more than seven months after the issuance of
the Final Order (and more than three years after the events at
issue), plaintiff filed a grievance pursuant to the state
prisoner grievance procedure. (Complt., Ex. B; Def. Mem. Supp.
Mot. Dismiss at 4.) Plaintiff's grievance was denied because it
was not filed within fourteen days of the Court's Final Order as
prescribed by Directive #4040, and plaintiff failed to offer any
mitigating circumstances that would allow acceptance of the late
grievance. (Def. Mem. Supp. Mot. Dismiss at 4; Complt., Ex. B.)
After twice attempting to file the grievance and being told that
"the mitigating circumstances presented are not sufficient to
file the grievance," plaintiff sent a "Grievance Appeal" to
Superintendent Fischer, which was also rejected for failure to
present mitigating circumstances explaining the delay. (Def. Mem.
Supp. Mot. Dismiss at 4 (citing August 6, 2003 Memorandum from
Paul Kikendall, Acting Superintendent).) Lastly, prior to filing
this action, on August 15, 2003, plaintiff sent correspondence to
Thomas Eagen, the Director of the Inmate Grievance Program,
regarding the rejection of his grievance. (Pl. Aff. Opp. Mot.
Dismiss at 2; Def. Mem. Supp. Mot. Dismiss at 4.) Eagen responded
via letter and explained that the grievance was rejected because
it was not filed within fourteen days of the Court's Final Order
and plaintiff failed to offer any mitigating circumstances for
the delay. (Id. (citing September 9, 2003 letter from Eagen).) Shortly thereafter, plaintiff initiated the present action, the
Complaint being received by the Pro Se Office on December 15,
2003. Defendant responded to the Complaint with a motion to
dismiss which is now before this Court.
I. Defendant's Motion to Dismiss For Failure to State a
A. Standard of Review
The Second Circuit has concluded that "failure to exhaust
administrative remedies is not a jurisdictional predicate" under
the Prison Litigation Reform Act ("PLRA"). Richardson v. Goord,
347 F.3d 431, 433 (2d Cir. 2003) (per curiam). Consequently, a
motion to dismiss for failure to exhaust all administrative
remedies "is analyzed pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure." Petit v. Bender, No. 99 Civ. 0969,
2003 WL 22743485, at *3 (S.D.N.Y. Nov. 19, 2003).
On a motion to dismiss pursuant to FED.R.Civ.P. Rule 12(b)(6),
a court must accept as true all of the well pleaded facts and
consider those facts in the light most favorable to the
plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974),
overruled on other grounds; Davis v. Scherer, 468 U.S. 183
(1984); Hertz Corp. v. City of New York, 1 F.3d 121, 125 (2d
Cir. 1993); In re AES Corp. Sec. Litig., 825 F. Supp. 578, 583
(S.D.N.Y. 1993) (Conner, J.). The issue is "whether the claimant
is entitled to offer evidence to support the claims." Scheuer,
416 U.S. at 236. A complaint should not be dismissed for failure
to state a claim "unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief." Padavan v. United States,
82 F.3d 23, 26 (2d Cir. 1996) (quoting Hughes v. Rowe, 449 U.S. 5, 10
(1980)). In assessing the legal sufficiency of a claim, the court may consider only the
facts alleged in the complaint, and any document attached as an
exhibit to the complaint or incorporated in it by reference.
See FED.R. Civ.P. 10(c); Dangler v. New York City Off Track
Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999) (citations
omitted); De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 69 (2d
Generally, "[c]onclusory allegations or legal conclusions
masquerading as factual conclusions will not suffice to prevent a
motion to dismiss." 2 JAMES WM. MOORE ET AL., MOORE'S FEDERAL
PRACTICE § 12.34[b] (3d ed. 1997); see also Hirsch v. Arthur
Anderson & Co., 72 F.3d 1085, 1088 (2d Cir. 1995). Allegations
that are so conclusory that they fail to give notice of the basic
events and circumstances of which plaintiff describes, are
insufficient as a matter of law. See Martin v. N.Y. State Dep't
of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978). However,
pro se complaints "are held to `less stringent standards than
formal pleadings drafted by lawyers,' and are to be construed
liberally on a motion to dismiss." Van Ever v. N.Y. State Dep't
of Corr. Servs., No. 99 Civ. 12348, 2000 WL 1727713, at *2
(S.D.N.Y. Nov. 21, 2000) (citations omitted); see also Ferran v.
Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). Nevertheless,
pro se status "`does not exempt a party from compliance with
relevant rules of procedural and substantive law.'" Traguth v.
Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quotations omitted); see
also Olle v. Columbia University, 332 F. Supp. 2d 599, 607
(S.D.N.Y. 2004); Scott v. Gardner, 287 F. Supp. 2d 477, 483
B. Whether Plaintiff's Claim Should Be Dismissed For Failure
to Exhaust Administrative Remedies
Under the PLRA a prison inmate must exhaust all available
administrative remedies prior to bringing a suit in federal court
under § 1983. See Booth v. Churner, 532 U.S. 731, 742 (2001). In relevant part, the PLRA provides "[n]o action shall be brought
with respect to prison conditions under section 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). The Supreme Court has explained that the
exhaustion 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). Further,
the Second Circuit has explicitly held that claims of inadequate
medical treatment are included in "prison conditions" within the
PLRA framework. Neal v. Goord, 267 F.3d 116, 119-21 (2d Cir.
2001). It should be noted that, "`[e]ven when the prisoner seeks
relief not available in grievance proceedings, notably money
damages, exhaustion is a prerequisite to suit.'" Finger v.
Superintendent McFinnis, No. 99 Civ. 9870, 2004 WL 1367506, at
*3 (S.D.N.Y. June 16, 2004) (quoting Porter, 534 U.S. at 524)
Under New York Law, each state correctional facility has
implemented a grievance procedure by which prisoners can file
complaints and appeal decisions of grievance resolution
committees. See Cross v. Corr. Sergeant Radmoski, No. 99 Civ.
2186, 2004 WL 345581, at * 2 (S.D.N.Y. Feb. 23, 2004) (citing
N.Y. CORRECT.LAW § 139; N.Y. COMP. CODES R. & REGS. tit. 7 § 701
et seq.). New York's Inmate Grievance Procedure ("IGP") is a
three-level process that prisoners must exhaust prior to filing a
complaint in federal court.*fn2 See Nelson v. Rodas, No.
01 Civ. 7887, 2002 WL 31075804, at *2 (S.D.N.Y. Sept. 17, 2002);
see also N.Y. CORRECT.LAW §§ 138-39; N.Y. COMP. CODES R. &
REGS. tit. 7 § 701 et seq. An inmate must pursue his grievance
to the highest administrative level, which includes all appellate remedies, to be deemed to have
exhausted his administrative remedies. See Petit, 2003 WL
22743485, at *4 (citations omitted). However, New York's
administrative code provides "exceptions" to the fourteen-day
limit*fn3 for filing an Inmate Grievance Complaint Form
"based on mitigating circumstances." N.Y. COMP. CODES R. & REGS.
tit. 7 § 701.7(a)(1).
An inmate must exhaust all administrative remedies prior to
bringing a claim in federal court, even if the administrative
action is futile. See Santiago v. Meinsen, 89 F. Supp. 2d 435,
441 (S.D.N.Y. 2000). However, failure to exhaust administrative
remedies is an affirmative defense that must be pled by
defendants. See Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir.
1999). The Second Circuit has suggested a three-part inquiry in
cases where a prisoner plaintiff opposes a defendant's claim that
the prisoner has failed to exhaust available administrative
remedies as required by the PLRA.
Depending on the inmate's explanation for the alleged
failure to exhaust, the court must ask whether
administrative remedies were in fact "available" to
the prisoner. The court should also inquire as to
whether the defendants may have forfeited the
affirmative defense of non-exhaustion by failing to
raise or preserve it, or whether the defendants' own
actions inhibiting the inmate's exhaustion of
remedies may estop one or more of the defendants from
raising the plaintiff's failure to exhaust as a
defense. If the court finds that administrative
remedies were available to the plaintiff, and that
the defendants are not estopped and have not
forfeited their non-exhaustion defense, but that the
plaintiff nevertheless did not exhaust available
remedies, the court should consider whether "special
circumstances" have been plausibly alleged that
justify "the prisoner's failure to comply with
administrative procedural requirements."
Hemphill, 380 F.3d at 686 (internal citations omitted)
(quotations omitted). When Martinez I was dismissed without prejudice, this Court
instructed plaintiff that he must exhaust his administrative
remedies prior to bringing a new action in federal court. At that
point, administrative remedies were still available to plaintiff,
as he had fourteen days from the Final Order in which to file a
grievance with DOCS. However, plaintiff waited almost seven
months before even attempting to file a grievance, thereby making
his grievance untimely. Furthermore, plaintiff has not offered
any arguments or evidence that would excuse his failure to
exhaust the proper administrative remedies.
Administrative remedies that have not technically
been exhausted may nonetheless be waived or estopped
under exceptional circumstances, such as where "(1)
an inmate was led to believe by prison officials that
his alleged incident was not a `grievance matter' and
assured that his claims were otherwise investigated . . .
(2) an inmate makes a `reasonable attempt' to
exhaust his administrative remedies, especially where
it is alleged that corrections officers failed to
file the inmate's grievances or otherwise impeded or
prevented his efforts, and (3) the state's time to
respond to the grievance has expired."
Petit, 2003 WL 22743485, at *6 (quoting O'Connor v.
Featherston, No. 01 Civ. 3251, 2002 WL 818085, at *2-3 (S.D.N.Y.
Apr. 29, 2002) (collecting cases)) (citations omitted). There
have been no allegations that defendant acted in a manner that
inhibited plaintiff's ability to exhaust his administrative
remedies; therefore, we find no basis for estopping defendant
from raising plaintiff's failure to exhaust as a defense. The IGP
supervisor found no mitigating circumstances which would excuse
the long delay in filing the grievance. Consequently, we are now
required to decide whether plaintiff's failure to comply with
administrative procedural requirements should be waived on the
basis of mitigating circumstances.*fn4
See Giano v. Goord,
380 F.3d 670
, 676 (2d Cir. 2004). Plaintiff alleges that his delay in exhausting his
administrative remedies was the result of his poor English,
limited education and inferior knowledge of the law. (Pl. Aff.
Opp. Mot. Dismiss at 3.) In addition, plaintiff contends that he
was unaware that he could file another complaint until another
inmate explained what "without prejudice" meant. While this Court
is acutely sympathetic to plaintiff's situation, we find no
mitigating circumstances that would justify excusing plaintiff's
failure to exhaust his administrative remedies. Plaintiff's
access to the appeals process was not obstructed or denied, nor
was plaintiff misled or tricked by an officer. Rather, plaintiff
simply failed to pursue his administrative remedies in a timely
manner. See Petit, 2003 WL 22743485, at *6.
Additionally, in Martinez I, this Court specifically informed
plaintiff that in order to proceed with his complaint in federal
court, he must first exhaust his administrative remedies. This
was a clear suggestion that plaintiff proceed with filing a
grievance, even though he might not have understood the legal
term "without prejudice." Yet plaintiff failed to attempt to file
a grievance until seven months after the Final Order. Plaintiff
cites Giano v. Goord for the proposition that "[i]f a prisoner
reasonable [sic] believes he has properly pursued his complaint,
the `exhaustion' requirement does not automatically doom his
case." (Pl. Mem. Opp. Mot. Dismiss at 5 (citing Giano,
380 F.3d at 676).) In Giano, the Second Circuit stated that in the PLRA
context they would not "attempt any broad statement of what
constitutes justification" in deciding whether to allow a § 1983
action to be brought where a prisoner's failure to follow
procedural requirements results in grievance procedures no longer
being available. 380 F.3d at 678. However, while the court found
mitigating circumstances in Giano, the relevant facts were very
different from those here. In the cases in which courts have
found mitigating circumstances, plaintiffs have alleged facts
that explain and justify the delay in filing a grievance; the
explanations are more than just a failure to timely file the grievance. See, e.g., id. (finding justification for
failure to timely exhaust administrative remedies where plaintiff
"reasonably" misinterpreted a DOCS regulation); Rodriguez v.
Westchester County Jail Corr. Dep't, 372 F.3d 485, 486 (2d Cir.
2004) (holding prisoner's reasonable belief that he was not
required to exhaust administrative remedies was a justification
for failure to exhaust available administrative remedies). In the
case at bar, plaintiff was specifically instructed that he was
required to exhaust his administrative remedies prior to bringing
a claim in federal court. "[P]risoners may not circumvent the
exhaustion requirement simply by waiting to bring a Section 1983
action until their administrative complaints are time-barred.
Such a rule would not comport with the purposes of the
PLRA, . . . ." Giano, 380 F.3d at 677.
Relieving plaintiff of the statutory obligation to exhaust his
administrative remedies because he failed to file a grievance
until more than three years after his claim arose and more than
seven months after this Court, in dismissing his first action,
instructed him to exhaust his administrative remedies, "would
eviscerate the PLRA exhaustion requirement." Burns v. Moore,
No. 99 Civ. 0966, 2002 WL 91607, at *6 (S.D.N.Y. Jan. 24, 2002)
(citing Wright v. Morris, 111 F.3d 414, 417 n. 3 (6th Cir.
1997) (stating "it would be contrary to Congress' intent in
enacting the PLRA to allow inmates to bypass the exhaustion
requirement by declining to file administrative complaints and
then complaining that administrative remedies are time-barred and
thus not available.")). "[S]everal courts in this District have
held that failure to file a timely grievance constitutes failure
to exhaust administrative remedies as required by the PLRA."
Cole v. Miraflor, No. 02 Civ. 9981, 2003 WL 21710760, at *2
(S.D.N.Y. July 23, 2003) (citations omitted); see also Patterson
v. Goord, No. 02 Civ. 0759, 2002 WL 31640585, at *1 (S.D.N.Y.
Nov. 21, 2002).
Furthermore, defendant contends plaintiff's Complaint should be
dismissed with prejudice because of his "repeated and completely voluntary failure to
exhaust his available administrative remedies." (Def. Mem. Supp.
Mot. Dismiss at 5.) Defendant argues that plaintiff's long delay
in attempting to comply with the DOCS grievance system, without
providing any reason for the delay, fully justified the
administrative rejection of plaintiff's grievance. (Id.) Since
plaintiff no longer has any administrative remedy available to
him, defendant asserts that this matter should be dismissed with
prejudice. (Id. at 5, 6.). Reluctantly, we must agree.
In view of the fact that plaintiff's attempt to file a
grievance has been rejected because "the appropriate prison
officials have found that there are no mitigating circumstances
that would permit him to file an untimely grievance," the
dismissal of this action must be with prejudice. See Patterson,
2002 WL 31640585, at *1 (citing Polanco v. N.Y. Dep't of
Corrs., No. 01 Civ. 0759, 2002 WL 272401, at *3 (S.D.N.Y. Feb.
26, 2002); Byas v. State of New York, No. 99 Civ. 1673, 2002 WL
1586963, at *2 (S.D.N.Y. July 17, 2002); see also Berry v.
Kerik, 366 F.3d 85, 88 (2d Cir. 2004) (finding dismissal of case
with prejudice proper in the absence of any justification or
mitigating circumstances "where exhaustion was required but
administrative remedies have become unavailable after the
prisoner had ample opportunity to use them").
Because plaintiff's Complaint is dismissed with prejudice for
failure to exhaust administrative remedies, we need not reach the
issue of whether plaintiff's claim is time-barred by the statute
of limitations as contended by defendant. CONCLUSION
For all of the foregoing reasons, defendant's motion to dismiss
is granted and the Complaint is dismissed with prejudice.