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Francis v. Zavadill


October 30, 2006


The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.


Victor Francis, proceeding pro se, brings suit under 42 U.S.C. § 1983 ("section 1983") against defendants State of New York Department of Correctional Services ("DOCS") Green Haven Correctional Facility Cook Erik Zavadil, Food Administrator II Sidney Johnston, and Food Services Administrator John Rapp.*fn1 Francis alleges that food served to inmates at the Green Haven Correctional Facility ("Green Haven"), such as mashed potatoes, was contaminated with aluminum fibers and metal splinters from a faulty can opener.*fn2

Although plaintiff states that he has "[n]o visible injuries as yet,"*fn3 he seeks $100,000,000 in compensation and punitive damages, as well as injunctive relief requiring Johnston to buy a new and different can opener.*fn4 Defendants have moved to dismiss, inter alia, for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Plaintiff opposes this motion.*fn5 For the following reasons, defendants' motion is granted and this case is dismissed.


A. The Allegedly Contaminated Food

Plaintiff alleges that on July 25, 2005, while working at Green Haven's mess hall, he served inmates mashed potatoes prepared by Zavadil from a can.*fn6 In the course of recycling empty cans of mashed potatoes, plaintiff noticed aluminum fibers on his hands.*fn7 When he looked inside one of the cans, he saw aluminum fibers mixed with the powdered mashed potatoes.*fn8 Plaintiff called Zavadil to the area where he was working and showed him what he had found.*fn9 Zavadil, who allegedly responded that there was nothing he could do because the cans were already opened, continued to serve the mashed potatoes that he had prepared.*fn10 When asked why he was continuing to serve the contaminated mashed potatoes, Zavadil told plaintiff that he did not have anything to serve in place of the mashed potatoes.*fn11 Zavadil informed plaintiff that the manual can opener he was using would be repaired.*fn12

On September 11, 2005, a new blade was inserted into the can opener, but this did not prevent canned food from being contaminated with aluminum fibers and metal splinters.*fn13 When plaintiff informed Zavadil that the can opener had not been fixed properly, Zavadil responded that the matter had been brought to the attention of Johnston and Rapp.*fn14 According to plaintiff, Zavadil stated that the replacement of the can opener was out of his hands because it was a "money thing."*fn15

While eating lunch at some later date, several mess hall workers discovered metal splinters in their pizza, which had been served to the prison's general population.*fn16 The source of the splinters was the can opener used to open cans of tomato sauce.*fn17 This matter was brought to the attention of another cook, Lorie Badgers, who told Johnston that aluminum fibers and splinters were contaminating the food.*fn18 In October 2005, Johnston replaced the can opener with another manual can opener of the same style.*fn19

The problem continued. On November 14, 2005, plaintiff noticed the presence of aluminum fibers in mashed potatoes that came from a can opened with the new can opener.*fn20 According to plaintiff, the problem could be rectified by replacing the manual can opener with an electric one*fn21 Plaintiff claims he told both Johnston and Zavadil that an electric can opener was needed.*fn22 In response, Johnston and Zavadil allegedly told plaintiff that they did not have the money for an electric can opener and were not going to buy one.*fn23

B. Exhaustion of Administrative Remedies

Plaintiff claims that he filed a grievance regarding the can opener's contamination of food with aluminum fibers and metal splinters.*fn24 However, there is no such grievance on record. Green Haven maintains files of inmate grievances in accordance with DOCS Directive # 4040.*fn25 Directive #4040 requires facilities to record all grievances filed by inmates in grievance files and logs which are maintained for the current year and the previous four calendar years.*fn26 The only grievance on record filed by plaintiff, GH-50273-02, is a grievance concerning dental treatment dated November 20, 2002.*fn27 Furthermore, the Central Office Review Committee ("CORC") also maintains files of appealed grievance decisions in accordance with Directive # 4040.*fn28 A review of the CORC database reveals that the only grievance plaintiff appealed to CORC was the same grievance concerning dental work, which was disposed of by CORC on January 29, 2003.*fn29 Plaintiff did not submit a copy of his alleged grievance as part of his opposition.*fn30

Instead of filing a formal grievance, it appears that plaintiff wrote a letter to DOCS Commissioner Glenn S. Goord on February 15, 2006, complaining of the can openers used at Green Haven.*fn31 This letter was referred to DOCS Director of Nutritional Services, Howard Dean.*fn32 Dean sent plaintiff a letter dated March 24, 2006, informing him that the "Regional Coordinator investigated your concern and found that the can openers are in good repair."*fn33 Plaintiff sent Goord another letter*fn34 to which Dean responded with a letter dated April 24, 2006.*fn35 This letter states that the "Regional Coordinator and Food Service Administrator investigated your concerns while at site visits and found no problems with the can openers."*fn36 Plaintiff sent a third letter, dated May 2, 2006, which Dean responded to on May 30, 2006.*fn37 Dean's letter assured plaintiff that "we do everything possible to protect inmate food by using federally approved commercial can openers."*fn38


A. Motion to Dismiss - In General

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, "[a] court may not dismiss an action '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.'"*fn39 The task of the court in ruling on a motion to dismiss is "merely to assess the legal feasability of the complaint, not to assay the weight of the evidence which might be offered in support thereof."*fn40 "Thus, `[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims."*fn41

Furthermore, a complaint need not state the legal theory, facts, or elements underlying the claim.*fn42 Pursuant to the simplified pleading standard of Rule 8(a) of the Federal Rules of Civil Procedure, a complaint must include only "'a short and plain statement of the claim showing that the pleader is entitled to relief.'"*fn43 Under that pleading standard, "a plaintiff is required only to give a defendant fair notice of what the claim is and the grounds upon which it rests."*fn44

When deciding a motion to dismiss, courts must accept all factual allegations as true and draw all reasonable inferences in the non-moving party's favor.*fn45 And when a plaintiff is proceeding pro se, courts are instructed to construe the complaint liberally.*fn46 This is particularly important where a pro se plaintiff alleges a civil rights violation.*fn47

Finally, while courts generally may not consider matters outside the pleadings in determining if a complaint should survive a Rule 12(b)(6) motion, documents attached to the pleadings, documents referenced in the pleadings, and documents integral to the pleadings may be considered.*fn48 Courts may also take judicial notice of facts within the public domain and public records if such facts and records are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."*fn49

B. Exhaustion of Administrative Remedies

The Prison Litigation Reform Act of 1995 ("PLRA") mandates exhaustion by prisoners of all administrative remedies before bringing an action regarding prison conditions.*fn50 The PLRA's exhaustion requirement is mandatory.*fn51 Failure to exhaust is an absolute bar to an inmate's action in federal court: "§ 1997e(a) requires exhaustion of available administrative remedies before inmate-plaintiffs may bring their federal claims to court at all."*fn52 Because the plain language of section 1997e(a) states "no action shall be brought," an inmate must have exhausted his claims at the time the initial complaint was filed as "[s]ubsequent exhaustion after suit is filed . . . is insufficient."*fn53 Furthermore, the United States Supreme Court has held that "the PLRA's 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."*fn54

Before bringing suit in federal court, an inmate must fully present his claim for internal resolution within the correctional facility and DOCS. This is what is known as the exhaustion requirement. The Inmate Grievance Program ("IGP") is the relevant administrative vehicle in New York.*fn55 In order to survive a motion to dismiss, an inmate must fully exhaust all administrative remedies, at all levels of appeal.*fn56 Letters to the DOCS Commissioner, however, cannot take the place of a formal grievance.*fn57 In sum, an inmate must file a grievance and pursue that grievance through all three levels of the IGP.*fn58 Thus, an inmate's claim is not exhausted until he appeals to CORC and receives a final decision regarding his grievance.*fn59 Only upon such a final determination by CORC is an inmate deemed to have exhausted his administrative remedies.*fn60


Although the exhaustion requirement clearly applies to plaintiff's claim of deliberate indifference to health and safety, he did not file the requisite grievance regarding the facts that comprise this claim, i.e., that food being served to inmates was contaminated with aluminum fibers and metal splinters.*fn61 Nonetheless, plaintiff alleges that he filed a grievance alleging that a defective can opener left aluminum fibers and metal splinters in the food consumed by inmates at Green Haven.*fn62 Plaintiff then contradicts himself by admitting that he did not file a grievance but that he wrote to Superintendent Robert Ercole "informing him about the situation."*fn63 Plaintiff further alleges that Superintendent Ercole responded to his correspondence, advising him that the can opener in question would be monitored to assure proper maintenance.*fn64

Accepting plaintiff's self-serving allegations as true, once his alleged grievance was investigated and a decision was issued by Superintendent Ercole, plaintiff should have appealed that grievance to CORC. Any attempt by plaintiff to excuse his failure to appeal by arguing that "as usual grievance [sic] or Superintendent did not investigate the complaint" is without merit.*fn65 Plaintiff's own statements demonstrate that the grievance appeal procedures were available to him. Plaintiff's failure to appeal the alleged denial of his grievance amounts to a failure to meet the PLRA's exhaustion requirement. For this reason, plaintiff's Complaint must be dismissed.

The Second Circuit does not excuse a failure to exhaust when an inmate admittedly did not appeal to CORC and provides no justifiable explanation for his failure to do so.*fn66 In his opposition, plaintiff attempts to excuse his failure to meet the exhaustion requirement on the ground that he did not have sufficient time to appeal his alleged grievance because he had only four days to do so.*fn67 The form used to notify an inmate of the decision concerning his grievance includes an Appeal Statement section. An inmate must complete this section if he intends to appeal the decision of the Superintendent to CORC. The Appeal Statement advises the inmate that he has to state why he is appealing to CORC and that he has to return the statement to his Inmate Grievance Clerk within four days of receipt of the decision in order to file a timely appeal. However plaintiff's attempt to excuse his failure to exhaust by arguing that he did not have sufficient time to appeal because of problems with the law library is without merit. Nor are there any other circumstances that would reasonably excuse him from fully exhausting his grievance by appealing to CORC. Because plaintiff has provided no justifiable explanation for his failure to appeal, this case must be dismissed for failure to exhaust administrative remedies.*fn68


For the reasons stated above, defendants' motion to dismiss is granted and this case is dismissed. I hereby certify that any appeal taken will not be in good faith for purposes of 28 U.S.C. § 1915(a)(3). The Clerk of the Court is directed to close this motion (Document #7) and this case.


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