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Andre A. Johnson v. the Westchester County Department of Correction Medical Department

July 19, 2011


The opinion of the court was delivered by: John G. Koeltl, District Judge:


The plaintiff filed a complaint pro se alleging a claim under 42 U.S.C. § 1983 for deliberate indifference to serious medical needs in violation of the Eighth and Fourteenth Amendments. He listed as defendants the Westchester County Department of Correction ("WCDOC") Medical Department, Westchester County Jail ("the Jail"), Warden Anthony Amicucci, and Medical Liaison June Yozzo. He subsequently filed a letter alleging harassment in retaliation for filing that complaint. He has also moved for the appointment of counsel. The defendants moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).


In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). While the Court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions." Id.

When faced with a pro se complaint, the Court must "construe [the] complaint liberally and interpret it to raise the strongest arguments that it suggests." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (brackets and internal quotation marks omitted). "Even in a pro se case, however, . . . threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (internal quotation marks omitted). Thus, although the Court is "obligated to draw the most favorable inferences" that the complaint supports, it "cannot invent factual allegations that [the plaintiff] has not pled." Id.; see also Benavides v. Grier, No. 09 Civ. 8600, 2011 WL 43521, at *1 (S.D.N.Y. Jan. 6, 2011).


On July 30, 2010, the plaintiff filed his complaint against the defendants. The plaintiff alleges that, beginning on or about June 22, 2010, he was bitten by ticks over a nine-day period while a detainee at the Jail. (Pl.'s Aff. in Support of Civil Rights Act 42 U.S.C. § 1983 ("Pl.'s Aff.") ¶¶ 1, 12.) He claims that he "filed an inmate[] grievance and was informed by a Correctional Officer . . . that there is nothing that will be done about the matter." (Id. ¶ 3.) He alleges that he "requested that he have blood work taken at the Westchester Medical Center, to make sure that [he] had not been infected" by the tick bites. (Id. ¶ 13.) This request was allegedly denied. (Id. ¶ 14.) He alleges that he also filed complaints with the Warden's office and "followed all Rules and [Procedures]." (Id. ¶ 5.) He alleges that, although the "[r]espondent ordered the medical department to see plaintiff and to take the [b]lood work he requested, again medical refused to see plaintiff." (Id. ¶ 8.) These conditions, the plaintiff claims, caused a life-threatening illness. (Id. ¶ 16.)

In a letter filed August 31, 2010, the plaintiff claimed that Assistant Warden Vollmer entered his cell on or about August 27, 2010, searched the plaintiff's cell, and took legal papers pertaining to this case, two Ace bandages, and two rubber grips. (Pl.'s Aug. 31, 2010 Ltr. ("Pl.'s Ltr.") at 1.) The plaintiff said that he did not receive a list of the items confiscated. (Id.) The plaintiff captioned the letter "HARASSMENT IN REPRISAL FOR THE FILING OF CIVIL ACTION AGAINST W.C.D.O.C. 10 Civ 6309," although he did not otherwise indicate in the letter that he believes the actions to be retaliatory. (Id.)


The defendants moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). They argued that the plaintiff failed to allege (a) exhaustion of the WCDOC's grievance procedures as required by 42 U.S.C. § 1997e(a); (b) personal involvement on the part of the individual defendants; and (c) the existence of a municipal policy or practice that caused his alleged injury.


The defendants first argue that the plaintiff did not comply with the WCDOC's grievance procedures and that this action is therefore barred under § 1997e(a). That provision provides that "[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."

Failure to exhaust "is an affirmative defense under the PLRA, and . . . inmates are not required to specially plead or demonstrate exhaustion in their complaints." Jones v. Bock, 549 U.S. 199, 216 (2007). Dismissal under Rule 12(b)(6) for non-exhaustion is appropriate only if a plaintiff's failure to exhaust is evident on the face of the complaint. Id. at 215; see also, e.g., Smalls v. Jummonte, No. 08 Civ. 4367, 2010 WL 3291587, at *2 (S.D.N.Y. Aug. 13, 2010) ("Plaintiff was not required to plead or demonstrate his exhaustion of the DOC's established grievance procedure in his Complaint before this Court, and the fact that he did not plead exhaustion does not prove that he failed to exhaust.").

In this case, the plaintiff's complaint does not establish that he failed to comply with the WCDOC's grievance procedures. The only specific factual allegation as to how the plaintiff pursued his grievance prior to the filing of suit is a claim that the plaintiff "filed a complaint within the office of the Warden." (Pl.'s Aff. ¶ 4.) Otherwise, the complaint only conclusorily states that the "Plaintiff has followed all Rules and [Procedures]. The inmate Grievance within this facility fails to maintain an adequate grievance system." (Id. ¶ ...

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