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Eric R. Ferguson v. Sgt. Jones #24

September 12, 2011


The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.:


Pro se plaintiff Eric R. Ferguson brings this action under 42 U.S.C. § 1983, alleging that Defendants assaulted him while he was incarcerated at the Westchester County Jail. Defendants have moved to dismiss, arguing that Ferguson failed to exhaust his administrative remedies. Ferguson has not filed any opposition to Defendants' motion. For the following reasons, Defendants' motion to dismiss will be converted to a motion for summary judgment and granted.


The Complaint alleges that Officer Lawrence, Sergeant Jones, and Officer Seckerson assaulted Ferguson in the Special Housing Unit at the Westchester County Jail on October 15, 2009.*fn1 Ferguson describes the events as follows:

I was getting handcuffed to go to court[.] [A]fter the handcuffs were on my cell popped open. Officer Lawrence told me to face the wall and when I did he forcefully grabbed me and when I yanked my arm away [from] him Officer Seckerson and Sgt. Jones tackled me while I had handcuffs on and started punching me stating I was a threat! Officer James, Officer Seckerson, and Sgt. James all punched me in my face, stomach, head and back! (Cmplt. ¶ II(D)) Ferguson alleges that he suffered "a black eye, busted lip, and bruises." He "tried to get medical attention but was denied because [he] had court but when [he] came back [he] was not treated." (Cmplt. ¶ III)

The Complaint indicates that the Westchester County Jail has a grievance procedure, although Ferguson states that he does not know if the procedure covers some or all of his claims. (Cmplt. ¶ IV(B)-(D)) Ferguson asserts that he filed a grievance addressing all of his complaints, but that he "did not receive a response at all." (Cmplt. ¶ IV(F)(2)) Ferguson claims that he "gave the grievance to the 7-3 Sgt. on the 16th of October and never rec[ei]ved a[n] answer and when I did ask about my grievance they stated I did not put a grievance in!" (Cmplt. ¶ IV(I))



"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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "In considering a motion to dismiss . . . the court is to accept as true all facts alleged in the complaint," Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007) (citing Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 87 (2d Cir. 2002)), and must "draw all reasonable inferences in favor of the plaintiff." Id. (citing Fernandez v. Chertoff, 471 F.3d 45, 51 (2d Cir. 2006)).

"In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint." DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (citing Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999)). Additionally, "[w]here a document is not incorporated by reference, the court may never[the]less consider it where the complaint 'relies heavily upon its terms and effect,' thereby rendering the document 'integral' to the complaint." Id. (quoting Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006)).

Rule 12(d) of the Federal Rules of Civil Procedure provides that "[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed. R. Civ. P. 12(d). "The essential inquiry in determining whether it is appropriate to convert a motion [to dismiss] into a motion for summary judgment 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." Costor v. Sanders, No. 07 Civ. 11311(NRB), 2009 WL 1834374, at *2 (S.D.N.Y. June 16, 2009) (internal quotation omitted).

Here, material outside the pleadings -- including an affidavit and copies of the Westchester County Department of Correction's Inmate Rules & Regulations Handbook and inmate grievance procedure -- has been submitted to the Court. In accordance with Local Civil Rule 56.2, Defendants gave notice to Ferguson that the Court might treat Defendants' Rule 12(b)(6) motion as a motion for summary judgment, and informed Ferguson that if he did not respond "by filing sworn affidavits or other papers as required by Rule 56(e)," his "COMPLAINT MAY BE DISMISSED." (See Dkt. No. 13 ("Notice to Pro Se Litigant Who Opposes a Rule 12 Motion Supported by Matters Outside the Pleadings") (emphasis in original)). Accordingly, the Court elects to convert Defendants' Rule 12(b)(6) motion to one for summary judgment.

Summary judgment is warranted when the moving party shows that "there is no genuine dispute as to any material fact" and that it "is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A dispute about a 'genuine issue' exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). "'[W]here the nonmoving party will bear the burden of proof at trial, Rule 56 permits the moving party to point to an absence of evidence to support an essential element of the nonmoving party's claim.'" Lesavoy v. Lane, No. 02 Civ. 10162, 2008 WL 2704393, at *7 (S.D.N.Y. July 10, 2008) (quoting Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991)).

In deciding a summary judgment motion, the Court "'resolve[s] all ambiguities, and credit[s] all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment.'" Spinelli v. City of New York, 579 F.3d 160, 166 (2d Cir. 2009) (quoting Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001)). However, a "'party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment. . . . [M]ere conclusory allegations or denials . . . cannot by themselves create a genuine issue of material fact where none would otherwise ...

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