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Mateo v. O'Connor

August 12, 2010

CESAR MATEO, PLAINTIFF,
v.
KEVIN O'CONNOR, JEFFREY MACISAAC, AND STEVEN PURCELL, DEFENDANTS.



The opinion of the court was delivered by: Richard J. Holwell, District Judge

MEMORANDUM OPINION AND ORDER

Cesar Mateo ("Mateo"), a prisoner currently incarcerated at the Great Meadow Correctional Facility ("Great Meadow"), has brought several actions pro se against various prison officials pursuant to 41 U.S.C. § 1983 ("Section 1983"). In this case, Mateo is suing three employees of the New York State Department of Correctional Facilities ("DOCS"): Corrections Sergeant Kevin O'Connor ("O'Connor"), Corrections Officer Jeffrey MacIsaac ("MacIsaac"), and Corrections Officer Steven Purcell ("Purcell").*fn1 All three defendants worked at the Green Haven Correctional Facility ("Green Haven") while Mateo was incarcerated there from 2003 to 2008. Mateo raises claims of harassment and retaliation against O'Connor, MacIsaac, and Purcell. Defendants have moved to dismiss the complaint in its entirety. For the reasons that follow, the Court grants defendants' motion.

BACKGROUND

For purposes of this motion, the following facts are taken as true.

Mateo originally filed this lawsuit in the Northern District of New York, on August 22, 2008.*fn2 (Mateo v. O'Connor, No. 08-0923 (DNH) (N.D.N.Y. filed Aug. 22, 2008), Compl.) Because the complaint's allegations involved incidents at Green Haven, which is in this district, the case was transferred here. (Id., Order dated Sept. 18, 2008.)

The complaint alleges that defendants harassed, threatened, and retaliated against Mateo for writing letters about and filing grievances against various prison employees. On August 21, 2008, Mateo says he was en route to a hearing in connection with a grievance he had previously filed against two other prison officers*fn3 when defendant MacIsaac told him to "not ever write grievances against H-Block staffs [or] that I will get fuck[ed] up." (Compl. ¶ 9.) Later, when Mateo returned to his cell in the H-Block, MacIsaac ordered Mateo to "stand hands against the wall." (Id.) Purcell looked on as another officer "positioned himself behind" Mateo, "pressing his hand against the back of [Mateo's] head forward [with] a hand on [his] back." (Id.) A fourth officer pat-frisked Mateo, while MacIsaac stood next to Mateo and purportedly told him that he "can fuck me up, knock off my teeth, that it will happen to me right in this place, that for writing grievances." (Id.)

Back in his cell, Mateo noticed the power and water had been cut off. (Id. ¶ 10.) He drafted a letter of complaint to the prison superintendent and walked to lunch with the letter. (Id.) Noticing Mateo's letter, MacIsaac asked if it contained a grievance. (Id.) Mateo said no. (Id.) After afternoon recreation, Mateo returned to his cell to find MacIsaac and two other officers standing at the cell door. (Id.) The cell itself "was a mess": clothes strewn on the floor, mattress folded in half, "mail ripped and scattered on the floor." (Id.) MacIsaac said "that is what happen[s] when you write grievances." (Id.) Mateo drafted a second letter of complaint about this latest incident. (Id.)

On August 22, 2008, Mateo walked out of his cell for breakfast, mail in hand. (Id. ¶ 11.) Again MacIsaac noticed the mail and asked if Mateo was holding grievances; again Mateo said no. (Id.) MacIsaac called O'Connor over, and O'Connor asked Mateo to go back to his cell. (Id.) Later, an officer came to Mateo's cell and demanded that he pack up his property and move to G-Block. (Id.) During the move to G-Block, O'Connor "harass[ed]" him and told him that he "know[s] better not to write grievances." (Id. ¶ 12.) That night, Mateo was given a "fabricated, retaliatory misbehavior report" signed by MacIsaac, O'Connor, and other prison officers.

A few days later, Mateo brought this action.

DISCUSSION

The Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e, requires that prisoners exhaust all available administrative remedies before pursuing a lawsuit in federal court. See 42 U.S.C. § 1997e(a) ("No 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."); Porter v. Nussle, 534 U.S. 516, 532 (2002) (exhaustion is required for "all inmate suits about prison life"); Booth v. Churner, 532 U.S. 731, 734 (2001) (exhaustion required before filing a Section 1983 claim for monetary damages even though monetary damages are unavailable as an administrative remedy). To properly exhaust a claim, a prisoner must comply with state grievance procedures.*fn4 Jones v. Bock, 549 U.S. 199, 218 (2007). Merely "[a]lert[ing] the prison officials as to the nature of the wrong for which redress is sought does not constitute proper exhaustion." Macias v. Zenk, 495 F.3d 37, 44 (2d Cir. 2007) (internal quotation marks and citation omitted). Nor does an "untimely or procedurally defective" administrative grievance. Woodford v. Ngo, 548 U.S. 81, 83--84 (2006).

When a prisoner fails to properly exhaust his administrative remedies before filing suit, the action mustbe dismissed. See Burgos v. Craig, No. 06-5505, 2008 WL 5210890, at *1 (2d Cir. 2008) ("[Exhaustion] must be completed before suit is filed, and completing the exhaustion requirements only after filing suit is insufficient."); Neal v. Goord, 267 F.3d 116, 121--22 (2d Cir. 2001), abrogated in part on other grounds by Porter, 534 U.S. 516. This is so even if the claim has since been exhausted. See Mateo v. Alexander, No. 08-8797 (RJH), 2010 WL 431718, at *3 (S.D.N.Y. Feb. 9, 2010); Mendez v Artuz, No. 01-4157 (GEL), 2002 WL 313796, at *2 (S.D.N.Y. Feb. 27, 2002).

Exhaustion is an affirmative defense, so inmates need not specially plead or demonstrate it in their complaint. See Jones v. Bock, 549 U.S. 199, 216 (2007). For that reason it is often a matter best left for resolution at the summary judgment stage. But dismissal under Rule 12(b)(6) is justified where non-exhaustion is clear from the face of the complaint. Shaw v. City of New York, No. 08-3997, 2009 WL 1110789, at *3 (S.D.N.Y. Apr. 21, 2009) (quoting McCoy v. Goord, 255 F. Supp. 2d 233, 251 (S.D.N.Y. 2003)). Where it is not clear, the court may convert the defendant's motion to one for summary judgment "limited to the narrow issue of exhaustion and the relatively straightforward questions about the plaintiff's efforts to exhaust, whether remedies were available, or whether exhaustion might be, in very limited circumstances, excused." McCoy, 255 F. Supp. 2d at 251; see Fed. R. Civ. P. 12(b).

When the court converts a Rule 12(b)(6) motion into one for summary judgment, it must "afford all parties the opportunity to present supporting material." Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir. 2000) (internal quotation marks omitted). Still, it need not give formal notice of its intention if "the parties were... apprised of the likelihood of conversion by less formal or direct means and, in fact, had a sufficient opportunity to present the materials relevant to a summary judgment motion." 5C Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1366 (3d ed. 2004); see In re G. & A. Books, Inc., 770 F.2d 288, 295 (2d Cir. 1985) ("The essential inquiry is whether the [non-movant] should reasonably have ...


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