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Mateo v. Ercole

September 17, 2010

CESAR MATEO, PLAINTIFF,
v.
R. ERCOLE. SUPERINTENDENT, G. WILLIAMS, CORRECTION OFFICER, M. KASPER, CORRECTION OFFICER, 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 Coxsackie Correctional Facility, 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"): Superintendant Robert Ercole ("Ercole"), Corrections Officer Glen Williams ("Williams"), and Corrections Officer Michael Kasper ("Kasper"). All three defendants worked at the Green Haven Correctional Facility ("Green Haven") while Mateo was incarcerated there in 2008. Mateo raises claims of harassment and retaliation against Williams and Kasper and a claim of supervisory liability against Ercole. Defendants have moved to dismiss the complaint in its entirety pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons that follow, the Court converts defendants' motion to one for summary judgment and grants the converted motion.

BACKGROUND

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

Mateo filed this lawsuit sometime between October 30, 2008 and November 3, 2008.*fn1

The complaint alleges three sets of incidents in which the defendants harassed, threatened, and retaliated against Mateo for grievances he filed against defendants Williams and Kasper. First, Mateo alleges various incidents of harassment and retaliation involving the denial of recreation and showers (the "September incidents"). On September 5, 2008, the plaintiff asked Williams and Kasper to place him on a list for recreation and shower, a request that the defendants allegedly denied. (Compl. 3.) Mateo further alleges that the water to his cell was subsequently cut off, which "caused [him] to feel sick, symptoms [he] related to high blood pressure," and for which he received medication. (Id.) Mateo filed a grievance that day, which was investigated and denied. (Id. at 3--4.) Thereafter, Mateo alleges that he "was deprived of recreation and showers" on "numerous occasions" by Williams and Kasper in retaliation for the grievance. (Id. at 3.) Mateo filed grievances about these incidents as well. (Bellamy Decl., Exs. C, D.)

Second, Mateo alleges that on October 22, 2008, Williams "threatened to physically harm me" and that Kasper "threatened to give me trouble" if he failed to "sign off" on grievances he had filed against them (the "October 22 incident"). (Compl. 4.) Mateo did not file a grievance about the incidents, but instead wrote a letter to Ercole that day detailing the alleged threats and requesting relief. (Id.)

Third, the complaint alleges that on October 30, 2008, Kasper issued "a fabricated and retaliatory misbehavior report" against Mateo for his refusal to comply with an order to attend an unscheduled clinic appointment (the "October 30" incident). (Id.) The complaint in this case is dated that same day.

In addition to these incidents, the complaint alleges that Ercole's failure to grant the plaintiff's grievances and relief requested in his letters exposed him "to further harassment and retaliation by [Ercole's] security staffs [sic]." (Id. at 3.)

DISCUSSION

I. Converting the Motion

On a motion to dismiss, the Court accepts the complaint's allegations as true and draws all reasonable inferences in the plaintiff's favor. In re DDAVP Direct Purchaser Antitrust Litigation, 585 F.3d 677, 692 (2d Cir. 2009). Where a motion is premised on the plaintiff's failure to exhaust his administrative remedies, the question is whether nonexhaustion is clear from the face of the complaint. See Jones v. Bock, 549 U.S. 199, 216 (2007) (exhaustion is an affirmative defense, so inmates need not specially plead or demonstrate it in their complaints). If nonexhaustion is clear, a motion to dismiss should be granted. 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)). If it is not, 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).

If the court chooses to convert the motion, 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). The court 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 recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings.").

Here, the defendants claim that Mateo did not exhaust his remedies before filing this lawsuit. Mateo does not contend that he exhausted administrative remedies prior to the filing of this suit. Instead, he asserts that defendants' harassment and threats of retaliation for filing grievances precluded him from using the grievance process. (Pltf.'s Opp. 4--5.) In an abundance of caution, the Court will assume that nonexhaustion is not plain from the face of the complaint and treat defendants' motion as one for summary judgment limited to the issue of exhaustion. Formal notice to the parties is unnecessary here, since defendants attached as exhibits to their motion the records they have of Mateo's grievances and appeals. (See Bellamy Decl. Exs. A--D.) All parties were on notice of the possibility of ...


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