The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge
Plaintiff John Anthony Petrucelli, a federal prisoner, brought this pro se action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1970), against five current and former employees of the Federal Bureau of Prisons ("BOP") at the Metropolitan Detention Center in Brooklyn, New York ("MDC").*fn1 He alleges that Dennis W. Hasty, a former MDC warden, Todd Bailey, a former MDC Legal Counsel, Salvatore LoPresti, a former Captain, and Lieutenants Daniel Ortiz and William Moran (collectively "defendants") violated his due process rights under the Fifth Amendment by wrongfully detaining him for 180 days in the Special Housing Unit ("SHU") of the MDC. Defendants move to dismiss all claims pursuant to Fed. R. Civ. P. 12, and alternatively, for summary judgment pursuant to Fed. R. Civ. P. 56(b). For the reasons set forth below, the court grants the motion to dismiss because Petrucelli did not exhaust his administrative remedies as is required under the Prison Litigation Reform Act ("PLRA") for him to file a Bivens claim. Furthermore, even if Petrucelli satisfied the PLRA's exhaustion requirements, the court finds no issue of material fact that would require a trial, and therefore, would grant summary judgment in favor of defendants.
The following facts are undisputed, and unless otherwise noted, are presented in the light most favorable to Petrucelli. In late January 2002, the Federal Bureau of Investigation ("FBI") arrested Petrucelli, and he was held at the MDC in Brooklyn while awaiting trial for murder in aid of racketeering in violation of 18 U.S.C. § 1959(a)(1)(2000). (Defs.' Rule 56.1 Statement ¶¶ 2 & 11; Ex. A to Dannels Decl.) He was convicted of the offense on February 7, 2003 in the United States District Court for the Southern District of the New York, and sentenced to life imprisonment, which he is now serving. (Defs.' Rule 56.1 Statement ¶ 5.) During the first six months of his pretrial detention at the MDC from January 31 to July 30, 2002, Petrucelli was placed in administrative detention and housed separately from the general population.*fn2 This Bivens action concerns this period of solitary confinement.
During his intake screening at the MDC on January 31, 2002, Petrucelli was not cleared for housing in the general population because the FBI had reported to the BOP that he was a "murder suspect and should be considered high security." (Dannels Decl. ¶ 5.) He was designated for administrative detention and placed in the SHU at the MDC because of the nature of the charges pending against him, as well as the FBI report. (Defs.' Rule 56.1 Statement ¶¶ 11 & 12; Exs. A & B to Dannels Decl.) On February 1, 2002, Moran prepared an administrative detention order authorizing the SHU placement, and Petrucelli received a copy of the order on the same day. (Defs.' Rule 56.1 Statement ¶¶ 12 & 13; Dannels Decl. ¶ 6 & Ex. C.)
On February 4, 2002, within three days of Petrucelli's placement in administrative detention, Ortiz conducted a record review and concluded that Petrucelli should continue in the SHU. (Defs.' Rule 56.1 Statement ¶ 14; Ex. D to Dannels Decl.) On February 8, 2002, Petrucelli appeared before LoPresti for a formal review of Petrucelli's placement in administrative detention, and LoPresti also continued Petrucelli's placement in the SHU. (Defs.' Rule 56.1 Statement ¶ 15; Ex. D to Dannels Decl.) Throughout Petrucelli's placement in administrative detention, BOP personnel conducted weekly record reviews and monthly formal reviews of Petrucelli's administrative detention status pursuant to BOP Program Statement 5270.07 and as is required by 28 C.F.R § 541.22. (Ex. D to Dannels Decl.) Beginning March 1, 2002, the BOP also held monthly psychological reviews of Petrucelli while he was in the SHU pursuant to the same rules and regulations. (Ex. E to Dannels Decl.) These psychological reviews all concluded that his risk of self-harm and potential harm to others was "low." On July 30, 2002, Petrucelli was released from the SHU and housed with the general population. (Defs.' Rule 56.1 Statement ¶ 51; Dannels Decl. ¶ 40 & Ex. N.)
During his time in administrative detention, Petrucelli made formal and informal complaints about his placement there. On April 1, 2002, two months into his administrative detention, Petrucelli applied to be released into the general population before the trial judge, the Hon. Thomas P. Griesa. (See Pl.'s Criminal Docket, United States v. Petrucelli, No. 02-cr-99 (TPG) (S.D.N.Y. filed Jan. 31, 2002, term. Feb. 10, 2003) (Apr. 1, 2002 Pretrial Conference).) At a court conference that day, the MDC explained that Warden Hasty made the decision to place Petrucelli in the SHU based on the nature of the murder racketeering charge, the possibility of capital punishment in the case, and Hasty's 30 years of correctional experience. (Tr. of April 1, 2002 Conference ("Tr."), Ex. A to Pl.'s Rule 56.1 Statement.) The placement was characterized as a "preemptive measure" though not all of Petrucelli's co-defendants were placed in administrative detention. (Tr. at 5, 8.) The prosecution took no position on his housing placement other than to express support for the BOP's procedures for the handling of such situations, and related that the U.S. Attorney's office was still deciding whether to seek the death penalty in the case. (Tr. at 7.) The BOP indicated that Petrucelli had recourse to seek administrative remedies internally through the prison, but none had been filed. (Tr. at 5.) Petrucelli's attorney countered that his client had never previously been incarcerated and tried to seek remedies three weeks before but was not given the proper form. (Tr. at 7, 15.) Judge Griesa ordered Petrucelli to seek the administrative remedies before making a formal motion with the court. No motion was subsequently filed with the trial court concerning Petrucelli's administrative detention.
On April 3, 2002, Petrucelli filed a BP-9 grievance with the Legal Department at the MDC requesting that he be released from the SHU into the general population. (Defs.' Rule 56.1 Statement ¶ 52; Ex. I to Dannels Decl. at 002.) Hasty denied this request on April 11, 2002. (Defs.' Rule 56.1 Statement ¶ 53; Ex. I to Dannels Decl. at 002.) On April 15, 2002, Petrucelli submitted a BP-10 appeal to the Northeast Regional Office appealing Hasty's decision, and, upon being notified that he had not included the required documentation with his submission, resubmitted his corrected appeal on April 29, 2002. (Defs.' Rule 56.1 Statement ¶¶ 54, 55, & 57; Ex. I to Dannels Decl. at 003 & 004.) The regional office denied Petrucelli's appeal on May 28, 2002. (Defs.' Rule 56.1 Statement ¶ 58; Ex. I to Dannels Decl. at 004.) Petrucelli claims in his second amended complaint that he appealed this decision to the BOP Central Office Appeals in Washington, D.C. on June 2, 2002, but the BOP has no record of this appeal (Second Am. Compl. ¶ 11; Defs.' Rule 56.1 Statement ¶ 59.) On July 30, 2002, Petrucelli was released from the SHU into the general population. He claims that LoPresti told him that he was being released because the MDC received notice from Washington, D.C. that Petrucelli was no longer facing the death penalty. (Petrucelli Decl. ¶ 11.)
After he was convicted and sentenced, Petrucelli again attempted to exhaust his administrative remedies and challenged his pretrial administrative detention with a BP-9 filed on September 30, 2004. (Defs.' Rule 56.1 Statement ¶ 60.) This initiated another chain of administrative grievances which eventually reached the BOP Central Office Appeals in Washington, D.C. (Id. ¶¶ 60-70.) The grievance was denied as untimely at the national level on February 15, 2005. (Id. ¶ 70.) Petrucelli filed this action on April 25, 2005.
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a defendant to make a motion to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A motion for judgment on the pleadings pursuant to Rule 12(c) is evaluated using the same standard as a motion under Rule 12(b)(6). King v. Am. Airlines, Inc., 284 F.3d 352, 356 (2d Cir. 2002). In Bell Atlantic Corp. v. Twombly, the Supreme Court retired the standard set forth half a century ago in Conley v. Gibson, that a complaint should not be dismissed "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," in favor of the requirement that plaintiff plead enough facts to "state a claim to relief that is plausible on its face." Twombly, 127 S.Ct. 1955, 1968-69, 1974 (2007) (quoting Conley, 355 U.S. 41, 45-46 (1957)). Under Twombly, a complaint cannot make merely "a formulaic recitation of the elements of a cause of action," but must allege facts that "raise a right to relief above the speculative level on the assumption that all allegations in the complaint are true (even if doubtful in fact)." Id. at 1965 (citations omitted). The Second Circuit has interpreted the foregoing language to "requir[e] a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible," rather than to mandate a "universal standard of heightened fact pleading." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007) (emphasis added).
Summary judgment under Rule 56(c) is appropriate where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).
A fact is "material" within the meaning of Rule 56 when its resolution "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
An issue is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The court must view all facts in the light most favorable to the nonmoving party, but "only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1776 (2007). The nonmoving party, however, may not rely on "[c]onclusory allegations, conjecture, and speculation," Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998), but must affirmatively "set out specific facts showing a genuine issue for trial," Fed. R. Civ. P. 56(e)(2). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Harris, 127 S.Ct. at 1776. "When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., Ltd. P'ship., 22 F.3d 1219, 1224 (2d Cir. 1994) (citing Dister v. Cont'l Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988)).
Under the local rules of this district court, a party moving for summary judgment must provide a Local Rule 56.1 Statement, which is a "short and concise statement, in numbered paragraphs [listing] the material facts as to which the moving party contends there is no genuine issue to be tried." Local Rules of the United States Districts for the Southern and Eastern Districts of New York ("Local Rules") 56.1(a). The party opposing the motion for summary judgment must answer with a Local Rule 56.1 Counterstatement, setting forth in "correspondingly numbered paragraph[s] responding to each numbered paragraph in the [moving party's Rule 56.1 Statement], and if necessary, [in] additional paragraphs," the material facts "as to which it is contended that there exists a genuine issue to be tried." Local Rule 56.1(b). Each numbered paragraph in the moving party's Rule 56.1 Statement will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in theopposing party's Rule 56.1 Counterstatement. Local Rule 56.1(c). To ensure that pro se parties are informed of and comply with these provisions, the local rules require represented parties moving for summary judgment to give a notice to the pro se litigant on the proper way to respond. Local Rule 56.2.
In this case, defendants served their Local Rule 56.1 Statement on the plaintiff and gave him a Local Rule 56.2 notice on how he must comply with Fed. R. Civ. P. 56(e) and Local Rule 56.1. Petrucelli did not respond to defendants' Rule 56.1 Statement in correspondingly numbered paragraphs, but instead supplied two additional statements setting forth his own factual contentions. To the extent the facts in defendants' Rule 56.1 statement are not directly addressed by Petrucelli, they are deemed undisputed for the purpose of the summary judgment motion.
In addition to viewing the facts in the light most favorable to the non-moving party, the court liberally reviews pro se submissions to raise the strongest arguments that they suggest. Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003) (internal citations and quotation marks omitted).
A. Statute of Limitations
Defendants argue that Petrucelli's Bivens claim must be dismissed because it is time-barred under the applicable statute of limitations found in § 214(5) of the New York Civil Practice Law and Rules, which states that an action to recover damages for personal injury must be commenced within three years. N.Y. C.P.L.R. § 214(5); Chin v. Bowen, 833 F.2d 21, 23 (2d Cir. 1987). While federal courts look to state law to determine the limitations period applicable to a Bivens claim, federal law determines the time in which a federal claim accrues. Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994). A Bivens claim accrues and the limitations period begins "when the plaintiff knows or has reason to know of the injury which is the basis of his action." Pinaud v. County of Suffolk, 52 F.3d 1139, 1156 (2d Cir. 1995) (citations omitted). This action was filed on April 25, 2005, more than three years after Petrucelli was placed into SHU on January 31, 2002. In arguing that Petrucelli's Bivens claim must be dismissed as untimely, the government asserts that Petrucelli knew of the alleged wrongful nature of his administrative detention as soon as he was placed in the SHU and that the limitations period includes the time when his administrative claims were pending. (Defs.' Mem. of Law at 11.) The court disagrees with the first assertion on the facts, which will be addressed in § III.B.1 infra, and the second assertion as a matter of law.
The Second Circuit has had no occasion to decide whether the pendency of administrative claims brought by an inmate plaintiff tolls the statute of limitations for a Bivens suit. See Bourguignon v. Armstrong, No. 3:06-cv-0259(WIG), 2007 WL 2495230, at *3 (D. Conn. Aug. 28, 2007) (citing Sims v. Goord, 151 F. App'x. 12, 14 (2d Cir. 2005)). The Tenth Circuit found that "[e]very circuit to address the issue has held that the filing of a mandatory administrative grievance tolls the statute of limitations for § 1983 and Bivens claims." Roberts v. Barreras, 109 F. App'x. 224, 226 (10th Cir. 2004) (citing Leal v. Georgia Dep't. of Corrections, 254 F.3d 1276, 1280 (11th Cir. 2001) (citing other circuit decisions)). Given the absence of controlling Second Circuit law on this issue and the posture of the other circuits, the court will toll the statute of limitations for this Bivens action. See also Allaway v. McGinnis, 362 F. Supp. 2d 390, 393-94 (W.D.N.Y. 2005) (tolling the statute of limitations during the pendency of inmate plaintiff's administrative appeals); Hayes v. Dep't of Corrections Officers, No. 97 Civ. 7383 (MBM), 1998 WL 901730, at *6 (S.D.N.Y. Dec. 28, 1998) (noting that, if plaintiff had pursued administrative remedies after the effective date of the Prison Litigation Reform Act ("PLRA"), the statute of limitations would have been tolled under New York law permitting tolling where there is a statutory prohibition to filing suit). The court finds that Petrucelli filed this action within the three-year statute of limitations because the period during which he sought administrative remedies is tolled.
B. Exhaustion of Administrative Remedies
Defendants also argue that the Petrucelli's claim is barred by the PLRA because he never exhausted his administrative remedies. The PLRA provides that "no action shall be brought with respect to prison conditions under section 1983 . . . or any other Federal law, by a prisoner confined in any jail, prison, or any other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The PLRA's exhaustion requirement applies to Bivens claims. See Porter v. Nussle, 534 U.S. 516, 524 (2002). Moreover, "filing an untimely or otherwise procedurally defective administrative grievance or appeal" does not satisfy the PLRA's exhaustion requirement. See Woodford v. Ngo, 548 U.S. 81, 83-84 (2006). Courts must construe the exhaustion requirement strictly because "[a] prisoner who does not want to participate in the prison grievance system will have little incentive to comply with the system's procedural rules unless noncompliance carries a sanction" and "[t]he benefits of exhaustion can be realized only if the prison grievance system is given a fair opportunity to consider the grievance." Id. at 95.
In the wake of Woodford, an inmate can no longer claim that partial exhaustion of administrative remedies is sufficient because prison officials have notice of his claim. Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007) ...