The opinion of the court was delivered by: Kenneth M. Karas, District Judge
Derek Sloane, pro se Plaintiff, brings this action against ten corrections officers and officials, pursuant to 42 U.S.C. § 1983. Plaintiff alleges that Defendants retaliated against him for his refusal, purportedly on religious grounds, to consent to a Purified Protein Derivative Test ("PPD Test") for the detection of latent tuberculosis ("TB") while he was incarcerated at the Fishkill Correctional Facility ("Fishkill"). Plaintiff further alleges that he was the subject of racially-motivated taunting and otherwise improper retaliation by prison officers.
Defendants move to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), claiming, inter alia, that Plaintiff failed to exhaust his administrative remedies under the Prison Litigation Reform Act of 1995 ("PLRA"), 42 U.S.C. § 1997e, and that Plaintiff failed to state a claim upon which relief can be granted. Defendants have also moved to convert their Motion to Dismiss into a Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56, in the event that the Court must look to materials outside the pleadings to rule on their motion.
For the reasons set forth below, Defendants' Motion to Dismiss is DENIED in part and
GRANTED in part. Defendants' Motion for Partial Summary Judgment is GRANTED.
The following facts are drawn from Plaintiff's Initial Complaint, Amended Complaint, and all relevant attached materials.*fn1
The events underlying Plaintiff's complaints all took place at the Fishkill Correctional Facility.*fn2 Plaintiff claims that he was placed on a one-year confinement hold based on his refusal to take a PPD test while he was incarcerated at Fishkill. (Compl. IV Statement of Claim 8.) Plaintiff states that he refused to take the PPD test because of his religious beliefs. (Compl. IV Statement of Claim 3-4.) Plaintiff insists that his religious beliefs are sincerely held, even though he failed to identify his religion in his Initial Complaint or Amended Complaint, and he failed to explain why his religion prohibits him from taking a PPD test. (Hr'g Tr. 9-11, Aug. 22, 2006.)
Plaintiff alleges that on March 23, 2003, he was transferred from the Clinton Correctional Facility to the Fishkill secure housing unit ("SHU"). (Am. Compl. IV Statement of Claim 2.) He alleges that the PPD test was administered on May 8, 2003 (Compl. IV-A 9), and that after he refused the test, he was placed in a confinement cell. (Compl. IV Statement of Claim 8.)*fn3
Plaintiff was subsequently transferred to the Elmira Correctional Facility in early 2004.
Sloane claims that after he refused to take the PPD test, several prison officials and officers conspired to retaliate against him on the basis of his religion and race. He named ten defendants*fn4 to this action: Superintendent William Mazzuca, Deputy Superintendent for Security R. Ercole, Lieutenant Michael Melton,*fn5 Lieutenant V. Lopiccolo, Sergeant K. Conklin, and Corrections Officers ("CO") Michael Venne, Nick Valhos, T. Geulu,*fn6 R. Padgett, and R. Woodward.*fn7
Plaintiff alleges that the retaliation against him began on May 8, 2003, when CO DiGregonio -- who is not a defendant in this action -- issued Plaintiff a misbehavior ticket as a warning for failure to comply with the PPD test requirements.*fn8 (Compl. IV Statement of Claim 3.) Plaintiff alleges that the fifteen misbehavior reports *fn9 issued against him between May 8, 2003, and January 9, 2004, constitute a pattern of retaliation against him by prison officials and corrections officers*fn10 on account of his religion.*fn11 (Compl. IV Statement of Claim 4.) In addition to the various misbehavior reports which were filed against him, Plaintiff alleges that Defendants Mazzuca and Ercole "ran a campaign" of harassing him in retaliation for refusing to take the PPD test. (Compl. IV Statement of Claim 6.)
Plaintiff asserts that in addition to religiously-motivated retaliation, he was subjected to racially-motivated retaliation. Plaintiff claims that Defendants issued misbehavior citations in response to his filing grievances against members of the prison staff, which Plaintiff identifies as part of a "pattern of harassing ethnic minorities." (Compl. IV Statement of Claim 5-6, 9.)
In his Amended Complaint, Plaintiff qualified and expanded his retaliation claim, stating that although he could "not say actually if [the guards retaliated against him] for his religious beliefs," he had determined that there were several other reasons why Defendants retaliated against him. (Am. Compl. IV Statement of Claim 3 (extraneous punctuation omitted).) For example, Plaintiff claims that Defendants retaliated against him because he was scheduled to come before the parole board, and in order to adversely affect his parole hearing, the Defendants taunted him with "a variety of alleged misdeeds." (Am. Compl. IV Statement of Claim 4-7.)
During approximately the same period of time that Sloane claims he was retaliated against, he filed twelve inmate grievances, and appealed five of these grievances to the Central Office Review Committee ("CORC").*fn12 (Lee Decl. Exs. A, B.) Sloane claims that these grievances themselves prompted retaliation by prison officials who conspired to "find grounds for issuing tickets" against him. (Am. Compl. IV Statement of Claim 4.)
Only two of the five grievances appealed by Sloane -- FCF 24866-04 and FCF 24522-03 -- postdated Sloane's refusal to take the PPD test and were appealed to the CORC. In neither of these two grievances did Plaintiff allege any religious-based retaliation. In grievance FCF 24866-04, Plaintiff accused Defendants Conklin, Geulu, Padgett, Valhos, and Woodward of participating in a "racially motivated incident" in which Conklin allegedly threw a breakfast tray at Plaintiff. (Lee Decl. Ex. B.) Plaintiff further accused Valhos of engaging in a "cover-up" to protect Defendant Conklin. (Id.) Plaintiff also alleged a "pattern of . . . persistent racial taunting" fueled by a conspiracy among the named officers and Mazzuca and Ercole to keep the "incidents alive." (Id.) Plaintiff made no indication in this grievance that prison staff were retaliating against him because of his religion. On appeal, the CORC concluded that Plaintiff "has not substantiated his claim that he has been the victim of harassment by staff nor has sufficient evidence been produced to support such a conclusion." (Id.)
In grievance FCF 24522-03, Sloane claimed that "a white officer" responded to Sloane with, "That(s) a good boy [sic]," after Sloane had complied with the officer's command to take down a towel which was obstructing a clear view of Sloane's cell.*fn13 (Id.) Plaintiff made no allegation in his grievance that this incident was spurred by Plaintiff's religious beliefs. After reviewing the results of an investigation into Sloane's allegations, the CORC determined that Sloane's appeal was "without merit." (Id.)
When considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a court must limit itself to facts stated in the complaint, documents attached to the complaint, and documents incorporated into the complaint via reference. See Newman & Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660, 662 (2d Cir. 1996) (citation omitted). Where a party proceeds pro se, the Court is obligated to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994); see also Davis v. Kelly, 160 F.3d 917, 922 (2d Cir. 1998) ("Though a court need not act as an advocate for pro se litigants, in pro se cases there is a greater burden and a correlative greater responsibility upon the district court to insure that constitutional deprivations are redressed and that justice is done." (quotation and citation omitted)). However, even when assessing a pro se plaintiff's claim under the Rule 12(b)(6) standard, "a conclusory allegation . . . without evidentiary support or allegations of particularized incidents, does not state a valid claim." Butler v. Castro, 896 F.2d 698, 700 (2d Cir. 1990).
When a court considers materials outside the pleadings, conversion of a motion to dismiss to one for summary judgment may be appropriate. However, before converting a motion, the court ordinarily is to provide notice to the parties. See Fed. R. Civ. P. 12(b). In particular, the court should appraise a pro se litigant of the consequences of failing to adequately respond to a motion for summary judgment. See Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999). However, such notice, even to pro se plaintiffs, is not always required. "The essential inquiry is whether the [the parties] should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or [were] taken by surprise and deprived of reasonable opportunity to meet facts outside the pleadings." Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir. 1999) (internal quotation marks omitted).
On August 22, 2006, the Court engaged Plaintiff in a colloquy, in which the Court made clear that Defendants were seeking to convert their Motion to Dismiss into one for summary judgment, particularly relating to the question of exhaustion of administrative remedies. (Hr'g Tr. 3-4.) Plaintiff acknowledged that he understood that Defendants were pursuing a Motion for Summary Judgment in the alternative when he filed his Opposition to Summary Judgment. (Id.) Indeed, Plaintiff's responding papers expressly discuss summary judgment standards. (Pl.'s Reply Opp'n.) Furthermore, Defendants alerted Plaintiff, pursuant to Local Civil Rule 12.1, that they would seek to convert their Motion to Dismiss into one for summary judgment. (Local Rule 12.1 Notice to Pro Se Litigant Opposing Mot. Dismiss Treated as Mot. Summ. J.) Other district courts have converted motions to dismiss into motions for summary judgment in PLRA cases where, as here, it is clear to both parties that Court likely will convert the motion, particularly as it relates to the question of proper exhaustion of administrative remedies. See Collins, 438 F. Supp. 2d at 411-12 (collecting cases). Thus, the Court may apply summary judgment principles to the exhaustion question. See McCoy v. Goord, 255 F. Supp. 2d 233, 248 (S.D.N.Y. 2003) ("[N]onexhaustion should be resolved as early as possible by the court.").
A motion for summary judgment, pursuant to Fed. R. Civ. P. 56(b) and (c), "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The burden is on the movant to show that there is no genuine factual dispute. See Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003). All reasonable inferences must be made in the non-movant's favor. Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
"If the evidence is such that, when viewed in the light most favorable to the nonmoving party, a reasonable fact finder could return a verdict for that party, then a genuine issue of material fact exists, and summary judgment is not warranted." Magan v. Lufthansa German Airlines, 339 F.3d 158, 161 (2d Cir. 2003) (citing Green Door Realty Corp. v. TIG Ins. Co., 329 F.3d 282, 286-87 (2d Cir. 2003)); see also Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000). The genuine issue of material fact "is not required to be resolved conclusively in favor of the party asserting its existence; rather, all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968).
B. Exhaustion of Administrative Remedies
Before the Court turns to Defendants' Motion to Dismiss for failure to state a claim, the Court considers whether Plaintiff has exhausted all available administrative remedies.
The PLRA provides that "[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). As noted by the Supreme Court, Congress enacted the PLRA to "reduce the quantity and improve the quality of prisoner suits" by allowing prison officials to initially address prisoner complaints through internal processes. Porter v. Nussle, 534 U.S. 516, 524-25 (2002). The PLRA's exhaustion ...