The opinion of the court was delivered by: Denise Cote, District Judge:
Pro se plaintiff Sabire Wilson ("Wilson") brings this action pursuant to 42 U.S.C. § 1983 against Phoenix House, an in-patient substance abuse treatment center to which Wilson was confined pursuant to New York's Drug Treatment Alternative to Prison ("DTAP") program, and Sidney Hargrove ("Hargrove"), a Phoenix House unit director. Wilson alleges that the defendants violated the Equal Protection Clause of the Fourteenth Amendment and the New York Human Rights Law, N.Y. Exec. Law § 296 (McKinney 2010) ("NYHRL"), when they denied Wilson, a male-to-female transgender, admission to a female support group and subsequently discharged her from the DTAP program at Phoenix House. Wilson also brings a false advertising claim against the defendants. Defendants have moved to dismiss plaintiff's claims on a number of grounds, including, inter alia: (1) that plaintiff failed to exhaust her administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a); and, (2) that she has failed to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), Fed. R. Civ. P. For the following reasons, the defendants' motion to dismiss is granted in part.
The following facts are taken from the plaintiff's January 6, 2011 amended complaint, and assumed to be true for the purposes of this motion. On March 27, 2008, Wilson was arrested for drug possession. Pursuant to a plea agreement, Wilson entered the Manhattan DTAP program and selected Phoenix House, an in-patient substance abuse treatment center, for her confinement. At her entrance interview on December 23, Wilson told the staff that she was a male-to-female transgender with male genitalia. During her time at Phoenix House, Wilson was required to sleep in male facilities and use male bathrooms, but was permitted to dress as a female.
In early January 2009, a senior counselor permitted Wilson to participate in a new gender-specific recovery group. When the group started, some female members complained about Wilson's participation and Wilson was asked to leave. Wilson appealed the decision to Hargrove, who said Wilson should never have been given permission to participate in the female group. Subsequently, Wilson spoke with the other female members of the group and claims that they consented to her participation. Hargrove, however, refused to permit Wilson to attend the female group.
Sometime thereafter, Hargrove convened a case conference regarding Wilson and recommended that she be transferred due to her transgender "needs." He also contacted the District Attorney who told him that if another facility was not found for Wilson before her next court date, she would be discharged back to the court at that time. After Wilson learned of her impending transfer, she complained to Hargrove in writing and in person. When Wilson requested to speak to Hargrove's superior, Hargrove responded that his supervisor supported his decision and that the decision was final. Since an alternative placement was not found, Wilson was discharged to the court.
On September 24, 2010, Wilson filed this action against Phoenix House and Hargrove. On December 13, the defendants filed a motion to dismiss. On January 6, 2011, Wilson filed an amended complaint. On February 9, the defendants filed a second motion to dismiss Wilson's amended complaint. Wilson opposed the motion on April 8, and the motion became fully submitted on April 25. In a letter dated April 26, Wilson requested that the case be dismissed without prejudice since she had limited access to the prison law library and therefore, could not fully oppose the defendants' motion.*fn1
On a motion to dismiss the court must "accept all allegations in the complaint as true and draw all inferences in the non-moving party's favor." LaFaro v. New York Cardiothoracic Group, PLLC, 570 F.3d 471, 475 (2d Cir. 2009) (citation omitted). To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citation omitted). The court is "not bound to accept as true legal conclusions couched as factual allegations." Id. at 1950-51.
Pleadings filed by pro se plaintiffs are to be construed liberally. Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (citation omitted). The rule favoring liberal construction of pro se submissions is especially applicable to civil rights claims. Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004) (citation omitted).
I. Equal Protection Claim Wilson brings a § 1983 claim asserting that the defendants discriminated against her on the basis of sex or sexual orientation in violation of the Equal Protection Clause. The defendants move to dismiss this claim on several grounds, the first of which is that Wilson failed to exhaust administrative remedies, as required by the PLRA.
The PLRA applies to actions "brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other correctional facility." 42 U.S.C. § 1997e(a) (emphasis supplied). The PLRA defines "prisoner" as "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." 42 U.S.C. § 1997e(h). While confined to Phoenix House, Wilson was a "prisoner" subject to the PLRA. See Ruggiero v. County of Orange, 467 F.3d 170, 175 (2d Cir. 2006) (drug treatment facility).
Before a prisoner may bring a § 1983 claim, the PLRA requires exhaustion of all administrative remedies that are "available" to the prisoner. 42 U.S.C. § 1997e(a). But "failure to exhaust is an affirmative defense under the PLRA, and . . . inmates are not required to specially plead or demonstrate exhaustion in their complaint." Jones v. Bock, 549 U.S. 199, 216 (2007). Defendants contend that Wilson's § 1983 claim is barred since she failed to exhaust New York City Department of Corrections ("NYCDOC") administrative remedies, specifically those provided by the five-level Inmate Grievance Resolution Program ("IGRP"). The defendants, however, have not explained whether: (1) the IGRP procedures were available at Phoenix House; (2) Wilson had notice that NYCDOC grievance procedures applied to the DTAP program; and, (3) Wilson could use NYDOC procedures to complain of a wrong at Phoenix House. In the absence of such a showing by the defendants, dismissal on this ground must be denied at this time.
Second, defendants argue that Wilson's § 1983 claim is barred by the PLRA since Wilson's mental anguish is not based on any physical injury. Section 1997e(e) of the PLRA prohibits prisoners from bringing a "Federal civil action . . . for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). Section 1997e(e), however, is not "a general preclusion of all relief if the only injury the prisoner can claim -- other than the intangible harm presumed to flow from constitutional injuries --is emotional or mental." Thompson v. Carter, 284 F.3d 411, 418 (2d Cir. 2002). A plaintiff may still bring a claim for injunctive or ...