The opinion of the court was delivered by: John T. Elfvin S.U.S.D.J.
Plaintiff Marvin J. Pitsley ("Pitsley"), currently an inmate at Auburn Correctional Facility, filed this action pro se alleging that Defendants, who are all employees of the New York State Department of Correctional Services ("DOCS"), violated his civil rights while he was incarcerated at the Attica Correctional Facility ("Attica") by failing to address his complaints of corrections officer misconduct, improperly filing a disciplinary report against him in retaliation for his prior complaints of corrections officer misconduct and by failing to address his claims of retaliation. Currently pending before the Court is Defendants' Motion for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure ("FRCvP") 12(c).
The following facts are alleged in Pitsley's Complaint and the letters of complaint referred to therein and are - for purposes of this motion - presumed true. Pitsley was incarcerated at Attica from September 1999 until August 2002. Beginning in late January or early February, 2002, Pitsley observed defendant Gary Pritchard ("Pritchard"), a Corrections Officer at Attica, steal property from and set fire to inmates' cells. On March 3, 2002 Pitsley submitted to Superintendent Walker*fn2 (whom the Court presumes to have been the Attica Superintendent) a letter concerning Pritchard's alleged conduct as described above. Pitsley sent a copy of the complaint to Attica's Grievance Committee ("the IGRC"), as well as to Defendant Randy James ("James"), Attica's Deputy Superintendent for Security. Hearing no response, Pitsley sent a letter on March 15, 2002 to Defendant Victor Herbert ("Herbert"), then Superintendent of Attica, documenting Pritchard's activities and also alleging that Pritchard had threatened him such that "[d]uring the evening feed up, [Pritchard] warned me not to come out of my cell. %%% He told me that he would not like to see me get my head bashed in."*fn3 See Pitsley's Opp'n at Ex. 2. The March 15 letter was also copied to the IGRC and James.*fn4 On June 9, 2002 Pitsley sent another letter to Herbert, with a copy to the IGRC, alleging that Pritchard had had another corrections officer destroy some of Pitsley's property.*fn5 Pitsley received no response to his letter.
On June 13, 2002 Pitsley was visited by employees of the Inspector General's Office at which time he told them about Pritchard's allegedly illegal conduct, the threats Pritchard made against him and the failure of Herbert, James and Defendant Glenn Goord ("Goord"), the DOCS Commissioner, to take any remedial action. Pitsley did not see Pritchard in the Attica facility from June 15, 2002 until June 27, 2002, but on June 27, Pitsley observed Pritchard assault another inmate by spraying him in the face with hot water. After Pitsley informed Pritchard that he (Pitsley) was going to write another letter of complaint about Pritchard's conduct, Pritchard threatened Pitsley that he "was next." See Complaint at ¶15.
Pitsley, on behalf of the allegedly assaulted inmate, wrote a letter of complaint concerning Pritchard's June 27 conduct and Pritchard's threats to Pitsley and sent copies of the letter on June 28, 2002 to Herbert, Goord, the Federal Bureau of Investigation, the Wyoming County District Attorney, the Inspector General's Office, the United States Attorney's Office and the New York State Attorney General's Office. On June 28, 2002 Pritchard told Pitsley that Pritchard was "going to get him" and refused to deliver food to Pitsley. Id. at ¶16. On June 29, 2002 Pritchard allegedly told Pitsley "I told you I was going to get you and I'm not done," then threw water on himself and falsely reported to his supervisor that Pitsley had thrown a liquid substance on him. Compl. at ¶19. Consequently, Pitsley was placed in handcuffs, taken to the Special Housing Unit ("the SHU"), placed in a cell with a plexi-glass shield, and was charged with assault on a staff member, committing an unhygienic act and making threats.*fn6 The charges were approved by Defendant Targaszewski.*fn7 On July 9, 2002 Pitsley received a letter from defendant Lucien Leclaire ("Leclaire"), DOCS Deputy Commissioner, on Goord's behalf. Leclaire indicated that Pitsley's June 28 letter was being referred to Herbert.
On July 18, 2002 Pitsley again met with investigators from the Inspector General's Office at which time he alleged that he was the victim of retaliation. On July 23, 2002 Pitsley sent a letter of complaint to Herbert, with a copy to Goord, alleging that Pritchard had filed false disciplinary charges against him in retaliation for his prior complaints about Pritchard.*fn8 A disciplinary hearing was conducted by Defendant T. Dixon ("Dixon") and on July 30, 2002 Dixon found Pitsley not guilty of the unhygienic act charge and guilty of committing assault and making threats against a staff member and sentenced Pitsley to 160 days in the SHU. Defendant Selsky affirmed Dixon's determination. In light of the fact that he was acquitted of the unhygienic act charge, Pitsley requested that the plexi-glass shield be removed from his SHU cell, but James denied that request.*fn9 On August 11, 2002 Pitsley sent another letter to Goord alleging that Pritchard retaliated against him for cooperating with the Inspector General's Office.
On September 3, 2002 Leclaire responded to Pitsley's August 11 letter on Goord's behalf, indicated that Pitsley's complaints were currently under investigation by the Inspector General's Office and confirmed that Pitsley had met with the investigators on June 13 and July 18, 2002. After Pitsley filed an appeal of his disciplinary charges, the determination was reversed and a new hearing ordered. A new hearing was never held and the charges were expunged from Pitsley's record. The Complaint is silent as to whether the investigation by the Inspector General's Office was concluded and as to whether Pitsley appealed the conclusion - if any - that was reached.
Pitsley contends that Pritchard and Targaszewski violated his 1st, 8th and 14th Amendment rights by knowingly filing false disciplinary charges against him in June 2002 in retaliation for his previous complaints about Pritchard. He alleges that Selsky violated his 1st and 14th Amendment rights by failing to remedy and approving Dixon's erroneous determination finding Pitsley guilty of two disciplinary charges in July 2002. He contends that James violated his 8th Amendment rights by keeping him confined in the SHU in a cell covered by plexi-glass even after Pitsley was found by Dixon to be not guilty of committing an unhygienic act. Finally, he asserts that Goord, Leclaire, Herbert, James and Dixon violated his 1st and 14th Amendment rights by failing to remedy Pritchard's illegal actions, and thus allowing Pritchard and Targaszewski to retaliate against him.
Judgment on the pleadings pursuant to FRCvP 12(c) is appropriate "where material facts are undisputed and where a judgment on the merits is possible merely by considering the contents of the pleadings." Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988). The Court may consider the pleadings and attached exhibits as well as statements or documents incorporated by reference. See Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993). As on a motion to dismiss pursuant to FRCvP 12(b), the facts alleged in the Complaint are deemed true and all reasonable inferences are construed in favor of the plaintiff. See Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995). Thus, defendants will be entitled to judgment on the pleadings only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 46 (1957). Additionally, because Pitsley is proceeding pro se, his Complaint must be read liberally and be construed to raise the strongest arguments it suggests. See Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000).
Defendants argue that Pitsley's case must be dismissed because he failed to exhaust his administrative remedies by filing a grievance alleging retaliation through the IGRC and following the various appeals processes available through the grievance system. Pitsley opposes the motion and argues (1) that Defendants waived their right to assert the affirmative defense of nonexhaustion of administrative remedies because in their Answers*fn10 asserting that defense, they failed to cite the statutory section providing that defense and (2) that he did exhaust his administrative remedies by writing letters to various DOCS officials and by copying the IGRC on those letters in compliance with the expedited grievance process contained in DOCS Directive # 4040.*fn11
In a series of cases, the Second Circuit has clarified the law on exhaustion of administrative remedies in the prisoner litigation context. See Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004); Oritz v. McBride, 380 F.3d 649 (2d Cir. 2004); Giano v. Goord, 380 F.3d 670 (2d Cir. 2004); Johnson v. Testman, 380 F.3d 691 (2d Cir. 2004); Abney v. McGinnis, 380 F.3d 663 (2d Cir. 2004). The Second Circuit has instructed that courts should first ask "whether administrative remedies were in fact 'available' to the prisoner" within the specific facts of the case. Hemphill, at 686. Next, the court should determine whether any of the "defendants may have forfeited the affirmative defense of non-exhaustion by failing to raise it or preserve it, %%% , or whether [a defendant's] ...