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August 11, 2005.

WILLIAM G. and WALTER W., et al., Plaintiffs,
GEORGE PATAKI, in his official capacity as Governor of the State of New York; SHARON CARPINELLO, in her official capacity as Acting Commissioner of the New York State Office of Mental Health; WILLIAM GORMAN, in his official capacity as Commissioner of the New York State Office of Alcohol and Substance Abuse Services; and BRION TRAVIS, in his official capacity as Chairman and Chief Executive Officer, New York State Division of Parole, Defendants.

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


This case raises the issue of whether the Prisoner Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), requires New York State inmates claiming violations of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 794, to exhaust remedies provided by the U.S. Department of Justice ("DOJ"). George Pataki, Sharon Carpinello, William Gorman, and Brion Travis ("Defendants") move to dismiss this putative class action under the PLRA for failure to state a claim. The Court concludes that the PLRA does require exhaustion of the DOJ remedies but that Defendants are not entitled to dismissal of the case at this stage of the litigation. Accordingly, Defendants' motion is DENIED.


  In New York State ("State"), individuals who have been released from custody on parole or post-release supervision (also known as "supervised release") are subject to arrest, on a warrant issued by the parole board, by parole officers who have reasonable cause to believe that the individuals have violated the conditions of that release. N.Y. Exec. Law § 259-i(3)(a)(i). These "parole detainees" are incarcerated pending a preliminary hearing before a hearing officer to determine whether there is probable cause to believe that conditions of parole or supervised release have been violated. See id. § 259-i(3)(c). Parole detainees are also provided the right to a final revocation hearing if probable cause is found. See id. § 259-i(3)(f).

  Some parole detainees are housed in New York City jails, often Rikers Island, pending revocation hearings. (Compl. ¶ 2.) Plaintiffs are a proposed class of such detainees with mental illnesses and substance-abuse problems. (Id. ¶ 1.) Parole-hearing officers have determined that Plaintiffs should be placed in residential treatment programs for mental illness and chemical addiction ("MICA programs") rather than face imprisonment for their alleged parole violations. (Id. ¶¶ 2, 4.) The proposed class is made up of "individuals with . . . serious and persistent mental illness[es] and . . . history of substance abuse (including alcohol abuse) who are (a) incarcerated at State expense in New York City jails as parole detainees and (b) awaiting an opening in a MICA program." (Id. ¶ 33.) Plaintiffs allege that the members of the proposed class often remain in jail for long periods of time waiting for openings in the few MICA programs that exist; in addition, the complaint alleges that the State-funded programs refuse to serve individuals with severe and persistent mental illnesses such as Plaintiffs. (Id. ¶ 6.)

  Named plaintiffs William G. and Walter W.*fn1 suffer from mental illnesses and substance abuse and were under the supervision of the New York State Division of Parole after they were released from prison. (Id. ¶¶ 13-14, 19-20.) After William G. was arrested for an alleged parole violation, the hearing officer and parole specialist assigned to his case agreed that a MICA program rather than incarceration was the best disposition for him. (Id. ¶¶ 14-15.) Parole-revocation proceedings have been consistently adjourned pending the opening of space for William G. in a MICA program. (Id. ¶ 15.) It is not explicitly stated in the complaint whether there has been a finding of probable cause that William G. violated his parole or whether his parole has been revoked following a final revocation hearing. Walter W.'s parole was revoked after he was arrested for attempted possession of a controlled substance; the parole officials supervising his case agreed that he should be placed in a MICA program and not a prison. (Id. ¶¶ 20-21.) Walter W. has been informed that he will be sentenced to imprisonment for violating the terms of his parole if no MICA program becomes available, although it is not clear from the complaint when such sentencing will occur. (Id. ¶ 21.)

  Plaintiffs seek declaratory and injunctive relief under the ADA and the Rehabilitation Act. They allege that Defendants have violated those statues by, among other things, excluding Plaintiffs from MICA programs based on the severity of their disabilities and requiring Plaintiffs to remain incarcerated instead of placing them in MICA programs. Defendants have moved to dismiss the complaint on the single ground that Plaintiffs have failed to exhaust administrative remedies as required by the PLRA. Specifically, Defendants contend that Plaintiffs failed to exhaust the procedures provided by the DOJ to investigate, and possibly resolve, complaints of unlawful discrimination based on disability.

  The DOJ procedures at issue provide a voluntary process for the filing of a complaint by "[a]n individual who believes that he or she or a specific class of individuals has been subjected to discrimination on the basis of disability by a public entity." 28 C.F.R. § 35.170(a). The complaint is to be filed with or forwarded to the appropriate federal agency, id. § 35.170(c), in this case, the DOJ itself, see id. § 35.190(b)(6) (providing that the DOJ is the agency responsible for investigating discrimination claims against correctional institutions). The DOJ investigates the complaint, attempts to resolve it informally, and, if no resolution can be achieved, issues a report including findings of fact and conclusions of law. Id. § 35.172(a). If the public entity about which the complaint is filed has, in the DOJ's judgment, failed to comply with federal antidiscrimination law, the agency can refer the matter to the Attorney General for appropriate action. Id. §§ 35.172(b), 35.174.


  The PLRA provides in pertinent part, "No 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 held that the "PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). The fact that the available remedies would not provide the relief sought is immaterial to the exhaustion requirement. Booth v. Churner, 532 U.S. 731, 740-41 (2001). Plaintiffs argue that the exhaustion requirement is inapplicable here for two reasons: first, the suit is not one "with respect to prison conditions" because it only challenges discrimination in community-based mental-health treatment; second, the DOJ's procedures are not "administrative remedies" under the PLRA because they are external to the prison system in which Plaintiffs are confined.

  A. This Action Relates to Prison Conditions

  The gravamen of the claims here is that Plaintiffs are confined in prisons instead of in rehabilitation centers in violation of federal law; thus, this is a suit "with respect to prison conditions." The phrase "with respect to prison conditions" is not defined in § 1997e(a). It is, however, defined in another section of the PLRA. That section states, "Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs." 42 U.S.C. § 3626(a)(1). The statute further provides:
[T]he term "civil action with respect to prison conditions" means any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings challenging the fact or duration of confinement in prison. . . .
Id. § 3236(g)(2). As the Seventh Circuit has explained, reference to this definition when interpreting § 1997e(a) is appropriate because both statutory sections are "`part of the same legislation with the same overreaching objectives — to enable prison officials to resolve complaints internally and to limit judicial intervention in the management of state and federal prisons.'" Witzke v. Femal, 376 F.3d 744, 751 (7th Cir. 2004) (quoting Smith v. Zachary, 255 F.3d 446, 449 (7th Cir. 2001)).

  In Witzke, the Seventh Circuit held that the "plain wording of the term `prison conditions' is that only complaints relating to conditions within a prison or correctional facility are subject to the exhaustion requirements" of § 1997e(a). Id. at 752. This conclusion is consistent with § 3236(g)(2)'s definition that includes "the conditions of confinement." See id. Here, Plaintiffs seek to be placed in MICA programs in lieu of incarceration in prison for violations of parole and supervised release. They argue that it is unlawful under federal law for the State to confine them in the more restrictive environment of a prison, where they cannot get the mental-health and substance-abuse treatment they need, instead of a MICA program where that treatment is available. They therefore challenge the conditions in which they are confined.

  Witzke supports this conclusion. There, the plaintiff claimed that he was deprived of his Eighth Amendment rights while he was residing at a halfway house in lieu of imprisonment for violation of probation. See id. at 747. The plaintiff argued that the PLRA did not apply to his claims because they did not relate to prison conditions. Id. at 750. The court rejected the argument. The court addressed two questions: (1) whether an individual residing in a halfway house in lieu of imprisonment for a probation violation is "confined," and (2) whether such an individual is confined in a "jail, prison, or other correctional facility" as those terms are meant in the PLRA. Id. at 752. The court answered both in the affirmative. First, the plaintiff was confined because he entered the program only after admitting to violations of probation, which could have led to revocation of probation, and the program imposed more restrictions than typically accompany probation such as residence at the facilities. Id. Second, the halfway house fit within the definition of "any . . . other ...

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