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Taylor v. Zerillo

November 10, 2008


The opinion of the court was delivered by: John Gleeson, United States District Judge


Herbert Taylor, currently incarcerated at the United States Penitentiary in Jonesville, Virginia, brings this pro se action alleging violations of his constitutional and state law rights. The action was filed in the United States District Court for the Southern District of New York and transferred to this court on March 27, 2008. For the reasons stated below, I deny defendants' motion to dismiss.


Taylor alleges that on August 24, 2006, while detained at the Queens Private Detention Facility ("QPDF"),*fn1 he "was assaulted . . . [b]y several inmates in the D-block housing unit." Amended Compl. 3. He claims that his assailants all belonged to the same prison gang, and that no officers were present when he was assaulted because of a staff shortage. Id. In a memorandum and order dated May 9, 2008, I dismissed Taylor's action arising from this incident for failure to state a claim against the inmate defendants, QPDF, and Warden W. Zerillo. I granted Taylor 30 days to file an amended complaint naming the prison officials who displayed "deliberate indifference" to his plight pursuant to Farmer v. Brennan, 511 U.S. 825 (1994), and providing a plain statement of how each named defendant was deliberately indifferent to his safety. Id. at 5. Taylor filed an amended complaint naming Warden Zerillo and three QPDF officers as defendants. The amended complaint also indicates that Taylor did not file an administrative grievance regarding his assault. Amended Compl. 4. Defendants moved to dismiss, arguing that Taylor has failed to exhaust his administrative remedies and failed to plead that the defendants were personally involved in the alleged violation of Taylor's rights. Defs.' Mem. In Supp. of Mot. to Dismiss ("Defs.' Mem.") 5-8.


A. Motion to Dismiss

Motions to dismiss pursuant to Rule 12(b)(6) test the legal, not the factual, sufficiency of a complaint. See, e.g., Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) ("At the Rule 12(b)(6) stage, '[t]he issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims.'" (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998))). Accordingly, I must accept the factual allegations in the complaint as true. Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007). However, I do not give effect to "legal conclusions couched as factual allegations." Port Dock & Stone Corp. v. Oldcastle Northeast, Inc., 507 F.3d 117, 121 (2d Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007)). Generally, "[s]pecific facts are not necessary" to state a claim so long as the statement gives the defendant "'fair notice of what the . . . claim is and the grounds on which it rests.'" Erickson, 127 S.Ct. at 2200 (quoting Twombly, 127 S.Ct. at 1964).

B. Construction of Taylor's Complaint

As the Second Circuit has frequently advised, the filings of pro se litigants should be construed "liberally" and read "to raise the strongest arguments they suggest." Ferran v. Town of Nassau, 471 F.3d 363 (2d Cir. 2006). Taylor contends that Warden Zerillo and the other named defendants should have protected him from attack, and their failure to do so renders them liable for the damage he suffered. His memorandum responding to defendants' motion to dismiss cites both Eighth Amendment cases and New York state cases involving the tort of negligent supervision. Under these circumstances, I construe Taylor's complaint as arguing that the named defendants violated his Eighth Amendment right to be free from cruel and unusual punishment because they "exposed a prisoner to a sufficiently substantial risk of serious damage to his future health" with "deliberate indifference" to that risk. Farmer v. Brennan, 511 U.S. 825, 843 (1994).*fn2 His complaint also alleges that defendants' negligence constitutes a breach of their state law "duty of care to safeguard inmates," which includes a duty to protect against "attacks by fellow inmates." Sanchez v. New York, 99 N.Y.2d 247, 252 (2002). Accordingly, I will consider defendants' arguments as they bear on each of these claims.

C. Exhaustion of Administrative Remedies

Under the Prison Litigation Reform Act, "[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 clarified 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." Porter v. Nussle, 534 U.S. 516, 532 (2002). The exhaustion requirements also apply to a plaintiff seeking relief not available in the prison administrative proceeding, such as monetary damages. See Booth v. Churner, 532 U.S. 731, 740-41 (2001).

The exhaustion requirement, however, is not absolute: 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.

Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004) (internal citations omitted). On the issue of estoppel, the Second Circuit has held that where a plaintiff alleges "that prison officials prevented him from exhausting his administrative remedies by beating him, threatening him, denying him grievance forms and writing implements, and transferring him to another correctional facility," he has raised a plausible claim that the defendant officials should be estopped from asserting exhaustion as a defense. Hemphill at 688 (summarizing Ziemba v. Wezner, 366 F.3d 161, 162 (2d Cir. 2004)).

In this case, Taylor concedes that he did not file any administrative grievance, and he does not dispute that the QPDF provides a grievance process. However, he contends that he was not told about the procedure, was not given any grievance forms, and was transferred from prison to prison to "hinder" his filing a grievance. Amended Compl. 4. He also claims that he complained to the warden in writing but received no response. Id. at 4; Pl.'s Opp. Mem. 6-7. These ...

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