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 several employees of the New York State Department of Correctional Facilities ("DOCS") and several institutions: Correction Officer Ronald J. Corbin ("Corbin"), Correction Officer Clifford K. Gunsett ("Gunsett"), Correction Officer Sean D. Carlson ("Carlson"), Correction Sergeant R. Clerc ("Clerc"), Correction Sergeant Kevin O'Connor ("O'Connor"), members of the "Cell Extraction Team," the New York State Department of Corrections, Green Haven Correctional Facility, and Great Meadow Correctional Facility.*fn1 All of the individual defendants worked at the Green Haven Correctional Facility ("Green Haven") while Mateo was incarcerated there. Mateo raises claims of excessive force and conspiracy. 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.
For the purposes of this motion, the following facts are taken as true: The complaint stems from a February 6, 2009 incident involving a forced removal of the plaintiff from his cell. On that date, at about 7:00 A.M., Correction Officer J. Adalian, not a party to this action, informed Mateo that he was to be moved to a different cell block to take part in a therapeutic program. (Compl. ¶ 1.) Mateo refused, and requested to be put in the facility's Special Housing Unit ("SHU") instead, for his own protection against potential retaliation and harassment. Defendant O'Connor then came with a team of officers, including defendants Corbin, Gunsett, Carlson, and Clerc, and told Mateo that if they entered the cell, they would "not be nice" to him. (Compl. ¶ 2.) Mateo insisted that his refusal to participate in the therapeutic program was "non-violent" and that he would take legal action if the officers inflicted harm, to which O'Connor responded that he did "not give a shit about lawsuit[s]." (Compl. ¶ 2.)
Corbin, Gunsett, and Carlson entered the cell to extract Mateo. As they did so, they struck the right side of Mateo's head, and handcuffed Mateo tightly. (Compl. ¶ 8.) Corbin and Gunsett then held him against the housing unit's heating system, while Clerc and Carlson observed. (Compl. ¶¶ 11--12.) This caused multiple injuries, including burns to Mateo's waist, thigh, and penis foreskin, a dislocation of his jaw bone, and bruises, scratches, and pain in various other parts of his body. (Compl. ¶¶ 14--16.)
Mateo filed a grievance regarding the incident on February 11, 2009. (Compl. ¶ 17.) That same day, he refused to participate in a disciplinary hearing about the inmate misbehavior report regarding the incident, at which he was found guilty of the misbehavior charged. Mateo appealed the ruling and achieved a reduction from a 120-day sentence in the SHU with loss of privileges to a 60-day one. (Compl. ¶ 20.) In his appeal of the disciplinary hearing's findings, Mateo also requested relief on the claims he had presented in his grievance. (Compl. ¶ 21.)
On February 26, 2009, Mateo was transferred to Upstate Correctional Facility ("Upstate"), where he alleges that "the correction sergeant that escorted the buss [sic] trip, at the entrance of the receiving room, threatened me not to write grievances, complaints, or else they will fuck with me." (Compl. ¶ 23.) At Upstate, Mateo also received a toaster oven, a contraband item for prisoners, which, according to him, had been planted in one of his property bags that arrived from Green Haven on March 3, 2009. (Compl. ¶ 25.)
In March 2009, Mateo received the Superintendent's denial of his February 11 grievance. (Compl. ¶ 19.) Mateo did not appeal the denial. (Id.)
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 Court considers 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, the 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 admits that he did not pursue an appeal of his grievance, but claims that his inaction was justified by fear of retaliation and harassment. (Compl. ¶ 19.) 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 appeals. (Bellamy Decl. Ex. 1.) All parties were on notice of the possibility of conversion; the defendants ...