UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
December 28, 2012
REGINALD WILLIAMS, PLAINTIFF,
SUFFOLK CCOUNTY ET AL., DEFENDANTS.
The opinion of the court was delivered by: Joseph F. Bianco, District Judge:
MEMORANDUM AND ORDER
his grievance because he was told by prison officials that there was nothing the grievance
Pro se plaintiff Reginald Williams process could do, and that he should get in ("Williams" or "plaintiff") brought this contact with Internal Affairs. Thus, given action against Suffolk County and three these allegations, the motion for judgment John Doe corrections officers (collectively, on the pleadings for failure to exhaust is "defendants") alleging violations of denied. However, defendants can raise this Williams' constitutional rights pursuant to issue again in a motion for summary 42 U.S.C. § 1983. Plaintiff alleges that three judgment after discovery has taken place. corrections officers physically assaulted him on May 26, 2011.
Defendants now move for judgment on A. Factual Background the pleadings, pursuant to Federal Rule of Civil Procedure 12(c). For the reasons set The following facts are taken from the forth below, defendants' motion is denied. complaint and plaintiff's Affidavit in Specifically, defendants have failed to Opposition of Motion ("Pl.'s Opp.") and are satisfy their burden, at this stage, of proving not findings of fact by the Court. These that plaintiff has failed to exhaust his allegations are assumed to be true for the administrative remedies, because plaintiff purpose of deciding this motion and are has adequately alleged that he did not construed in a light most favorable to the exhaust those remedies due to a plaintiff, the non-moving party. misrepresentation by prison officials. In particular, plaintiff alleges that he withdrew
Plaintiff is an inmate at the Suffolk B. Procedural Background County Correctional Facility ("SCCF").
Plaintiff alleges that on May 26, 2011, while Plaintiff filed a complaint in this action waiting to be transported to court, three on October 24, 2011. Defendants answered corrections officers physically assaulted him the complaint on February 24, 2012. because he failed to cease his conversation Defendants then filed a motion for judgment with another inmate. (Compl. at 4.) on the pleadings on June 12, 2012. In Specifically, plaintiff alleges that he was anticipation of this motion, plaintiff filed an handcuffed, punched in the face and head, Affidavit in Opposition on June 11, 2012. and kicked. (Id.) Officers then allegedly proceeded to jump on top of his right ankle
II. STANDARD OF REVIEW
several times. (Id.) Courts evaluate a motion for judgment
Plaintiff states that he unsuccessfully on the pleadings pursuant to Federal Rule of attempted to receive medical attention for Civil Procedure 12(c) under the same two days. (Id.) When he was brought to the standard as a motion pursuant to Federal hospital, plaintiff was allegedly diagnosed Rule of Civil Procedure 12(b)(6) for failure with "torn tissues" and a sprained ankle. to state a claim. See Hayden v.
Paterson, (Id.) Plaintiff received an air cast and 594 F.3d 150, 160 (2d Cir. 2010). In crutches for the injury to his ankle. (Id.) reviewing a motion to dismiss pursuant to
Rule 12(b)(6), the Court must accept the
Plaintiff filed a grievance with SCCF factual allegations set forth in the complaint officials. (Zwilling Affirmation ("Zwilling as true and draw all reasonable inferences in Affirm") ¶ 4.) However, before his favor of the plaintiff. See Cleveland v. grievance could be resolved, plaintiff Caplaw Enters., 448 F.3d 518, 521 (2d Cir. withdrew the grievance. (Zwilling Affirm, 2006); Nechis v. Oxford Health Plans, Inc., Ex. C.) 421 F.3d 96, 100 (2d Cir. 2005). "In order to survive a motion to dismiss under Rule In his complaint, in connection with the 12(b)(6), a complaint must allege a plausible grievance he filed, plaintiff states that prison set of facts sufficient 'to raise a right to officials "told [him] they can't do anything, relief above the speculative level.'" [and] that [he] had to call Internal Affairs." Operating Local 649 Annuity Trust Fund v. (Compl. at 2.) Plaintiff reiterates this Smith Barney Fund Mgmt. LLC, 595 F.3d statement in his Affidavit in Opposition of 86, 91 (2d Cir. 2010) (quoting Bell Atl. Motion. Plaintiff states that he filed a Corp. v. Twombly, 550 U.S. 544, 555 grievance but "was told to get in contact (2007)). This standard does not require with Internal Affairs, that there was nothing "heightened fact pleading of specifics, but the grievance committ[ee] could do." (Pl.'s only enough facts to state a claim to relief Opp. at 1.) Plaintiff allegedly contacted that is plausible on its face." Twombly, 550 Internal Affairs, and was told that it would U.S. at 570. investigate the matter. (Id. at 2.) A prison official noted on the grievance withdrawal The Supreme Court clarified the form that plaintiff "may pursue this matter appropriate pleading standard in Ashcroft v. through the Internal Affairs unit." (Zwilling Iqbal, 556 U.S. 662 (2009), setting forth a Affirm, Ex. C.) two-pronged approach for courts deciding a motion to dismiss. The Court instructed district courts to first "identify[ ] pleadings
that, because they are no more than McEachin v. McGuinnis, 357 F.3d 197, 200 conclusions, are not entitled to the (2d Cir. 2004). A pro se plaintiff's assumption of truth." 556 U.S. at 679. complaint, while liberally interpreted, still Though "legal conclusions can provide the must "'state a claim to relief that is plausible framework of a complaint, they must be on its face.'" Mancuso v. Hynes, 379 F. supported by factual allegations." Id. App'x 60, 61 (2d Cir. 2010) (quoting Iqbal, Second, if a complaint contains "well- 556 U.S. at 678); see also Harris v. Mills, pleaded factual allegations, a court should 572 F.3d 66, 72 (2d Cir. 2009) (applying assume their veracity and then determine Twombly and Iqbal to pro se complaint). whether they plausibly give rise to an
entitlement to relief." Id.
The Court notes that in adjudicating this A. Failure to Exhaust motion, it is entitled to consider: "(1) facts alleged in the complaint and documents Defendants argue that plaintiff is barred attached to it or incorporated in it by from raising a claim because plaintiff has reference, (2) documents 'integral' to the not exhausted his administrative remedies. complaint and relied upon in it, even if not For the reasons set forth below, the Court attached or incorporated by reference, (3) concludes that, based upon the allegations in documents or information contained in the complaint that plaintiff withdrew his defendant's motion papers if plaintiff has grievance after being told by prison officials knowledge or possession of the material and that it was futile (and that he should pursue relied on it in framing the complaint, (4) the matter with Internal Affairs), defendants public disclosure documents required by law motion for judgment on the pleadings is to be, and that have been, filed with the denied.
Securities and Exchange Commission, and
(5) facts of which judicial notice may 1. Legal Standard properly be taken under Rule 201 of the The Prison Litigation Reform Act of Federal Rules of Evidence." In re Merrill 1995 states that "[n]o action shall be brought Lynch & Co., 273 F. Supp. 2d 351, 356-57 with respect to prison conditions under [42 (S.D.N.Y. 2003) (internal citations omitted), U.S.C. § 1983], or any other Federal law, by aff'd in part and reversed in part on other a prisoner confined in any jail, prison, or grounds sub nom., Lentell v. Merrill Lynch other correctional facility until such & Co., 396 F.3d 161 (2d Cir. 2005); see also administrative remedies as are available are Cortec Indus., Inc. v. Sum Holding L.P., 949 exhausted." 42 U.S.C. § 1997e(a). "The
F.2d 42, 48 (2d Cir. 1991) ("[T]he district PLRA exhaustion requirement 'applies to all court . . . could have viewed [the inmate suits about prison life, whether they documents] on the motion to dismiss involve general circumstances or particular because there was undisputed notice to episodes, and whether they allege excessive plaintiffs of their contents and they were force or some other wrong.' Prisoners must integral to plaintiffs' claim."). utilize the state's grievance procedures, regardless of whether the relief sought is Where, as here, the plaintiff is offered through those procedures." Espinal proceeding pro se, "a court is obliged to v. Goord, 558 F.3d 119, 124 (2d Cir. 2009) construe his pleadings liberally, particularly (quoting Porter v. Nussle, 534 U.S. 516, 532 when they allege civil rights violations."(2002) (citations omitted)). "Proper
exhaustion demands compliance with an New York, 380 F.3d 680, 686, 691 (2d Cir. agency's deadlines and other critical 2004)). Initially, it was unclear whether the procedural rules because no adjudicative above-discussed considerations would be system can function effectively without impacted by Woodford. See, e.g., Reynoso, imposing some orderly structure on the 238 F. App'x at 662 ("Because we agree course of its proceedings" Woodford v. Ngo, with the district court that [plaintiff] cannot 548 U.S. 81, 90-91 (2006). Therefore, the prevail on any of these grounds, we have no exhaustion inquiry requires a court to "look occasion to decide whether Woodford has at the state prison procedures and the bearing on them."); Ruggiero v. Cnty. of prisoner's grievance to determine whether Orange, 467 F.3d 170, 176 (2d Cir. 2006) the prisoner has complied with those ("We need not determine what effect procedures." Espinal, 558 F.3d at 124 Woodford has on our case law in this area, (citing Jones v. Bock, 549 U.S. 199, 218 however, because [plaintiff] could not have (2007) and Woodford, 548 U.S. at 88-90). prevailed even under our pre-Woodford case law."). However, the Second Circuit has Prior to Woodford the Second Circuit: continued to hold post-Woodford that an inmate's failure to comply with the recognized some nuances in the exhaustion requirement may be excused on exhaustion requirement: (1) these grounds. See Messa v. Goord, 652 administrative remedies that are F.3d 305, 309 (2d Cir. 2011) (per curium) ostensibly 'available' may be (citing the Hemphill factors). unavailable as a practical matter, for instance, if the inmate has already As the Supreme Court has obtained a favorable result in held, exhaustion is an affirmative defense. administrative proceedings but has See Jones, 549 U.S. at 216 ("We conclude no means of enforcing that result; (2) that failure to exhaust is an affirmative similarly, if prison officials inhibit defense under the PLRA, and that inmates the inmate's ability to seek are not required to specially plead or administrative review, that behavior demonstrate exhaustion in their may equitably estop them from complaints."); see also Key v. Toussaint, raising an exhaustion defense; (3) 660 F. Supp. 2d 518, 523 (S.D.N.Y. 2009) imperfect exhaustion may be ("Failure to exhaust remedies under the justified in special circumstances, for PLRA is an affirmative defense, and thus the instance if the inmate complied with defendants have the burden of proving that his reasonable interpretation of [plaintiff's] retaliation claim has not been unclear administrative regulations, or exhausted." (citations omitted)). Moreover, if the inmate reasonably believed he the Second Circuit has made clear that an could raise a grievance in inmate is not entitled to a jury trial on disciplinary proceedings and gave factual disputes regarding this failure to prison officials sufficient exhaust administrative remedies under the information to investigate the PLRA. See Messa, 652 F.3d at 310. grievance.
Reynoso v. Swezey, 238 F. App'x 660, 662 (2d Cir. 2007) (internal citations omitted); Defendants argue that plaintiff failed to see also Davis v. New York, 311 F. App'x exhaust his remedies under the PLRA 397, 399 (2d Cir. 2009) (citing Hemphill v. because even though he filed a grievance, he
voluntarily withdrew that grievance before (7th Cir. 2011) (holding that "participating prison officials could act on it. (Defs.' Mem. in an internal-affairs investigation" does not at 5.) Defendants also argue that plaintiff's exhaust a prisoner's available administrative complaint to Internal Affairs is insufficient remedies and finding that the reasoning of to constitute exhaustion under the PLRA. the Ninth Circuit in Panaro and the Sixth (Id.) Circuit in Thomas "is persuasive"); Hill v.
Tisch, No. 02-CV-3901, 2009 WL 3698380,
The Court agrees with defendants that at *8 (E.D.N.Y. Oct. 30, 2009). plaintiff's complaint to Internal Affairs does not constitute "proper exhaustion" under However, construing the pro se Woodford. The Second Circuit has held that plaintiff's pleadings and papers liberally, "after Woodford, notice alone is insufficient plaintiff does not argue that his participation because '[t]he benefits of exhaustion can be in the Internal Affairs investigation is realized only if the prison grievance system sufficient to exhaust the PLRA's is given a fair opportunity to consider the administrative remedies. Instead, plaintiff grievance' and '[t]he prison grievance states that he attempted to exhaust his system will not have such an opportunity remedies, but was told that the grievance unless the grievant complies with the process could not help him and that he had system's critical procedural rules.'" Macias to file a complaint with Internal Affairs.
v. Zenk, 495 F.3d 37, 44 (2d Cir. 2007) (Compl. at 2; Pl.'s Opp. at 1.) Therefore, (quoting Woodford, 548 U.S. at 95)). Thus, plaintiff appears to argue that the consistent with that precedent, this Court administrative grievance procedures were concludes that an inmate's request for an not "available" to him because prison internal affairs investigation is not a officials misrepresented that the grievance substitute for complying with the prison process could not assist him and that he grievance procedures. needed to initiate an internal affairs investigation.
Other courts that have specifically confronted the question of whether The Second Circuit has stated that if a participating in an internal affairs prisoner has failed to exhaust, the Court investigation exhausts a prisoner's remedies must determine "whether administrative under the PLRA have similarly concluded remedies were in fact 'available' to the that it does not. See, e.g., Panaro v. City of prisoner . . . or whether the defendants' own
N. Las Vegas, 432 F.3d 949, 953 (9th Cir. actions inhibiting the inmate's exhaustion of 2005) (holding that "participating in an remedies may estop . . . the defendants from internal affairs investigation does not by raising the plaintiff's failure to exhaust as a itself satisfy the exhaustion requirement of defense." Hemphill, 380 F.3d at 686 the PLRA"); Thomas v. Woolum, 337 F.3d (internal citations omitted).*fn1 Moreover, it is 720, 734 (6th Cir. 2003), abrogated on other clear that "[a]n administrative remedy is not grounds by Woodford, 548 U.S. at 87 'available,' and therefore need not be (stating that "the exhaustion requirement in exhausted, if prison officials erroneously § 1997e(a) is directed at exhausting the inform an inmate that the remedy does not prisoner's administrative remedies, and that
Use of Force or other investigations do not
satisfy the PLRA's dictates") (internal citation and quotation marks omitted); see also Pavey v. Conley, 663 F.3d 899, 905
exist or inaccurately describe the steps he opinion that plaintiff's complaint could not needs to take to pursue it." Pavey, 663 F.3d have been disposed of on a motion to at 906 (citations omitted); see also Smith v. dismiss. Id.; see also Woods, 2006 WL Woods, No. 9:03-CV-480, 2006 WL 1133247, at *16 (granting defendants' 1133247, at *15 (N.D.N.Y. Apr. 24, 2006) motion for summary judgment because (Report and Recommendation) ("[C]ase law while the prison grievance system is not exists supporting the proposition that, "available" to a plaintiff who did not file a assuming plaintiff was instructed by prison grievance due to a misrepresentation by officials, contrary to prison regulations, that prison officials, plaintiff had introduced no he could not file a grievance, and plaintiff evidence that prison officials had made such indeed did not initiate the grievance process a misrepresentation). by filing that grievance in reliance on that misrepresentation, the formal grievance In the instant case, plaintiff has proceeding required by the prison grievance adequately alleged that the administrative system was never 'available' to plaintiff grievance procedure was not "available" to within the meaning of the PLRA.") (internal him due to a misrepresentation by prison alterations, citations, emphasis, and officials. See Hemphill, 380 F.3d at 686. quotation marks omitted). Because plaintiff has stated in both his complaint and in his affidavit that he In Brown v. Croak, 312 F.3d 109 (3rd withdrew his grievance only after prison Cir. 2002), the Third Circuit reversed the officials told him that they could not assist district court's decision granting defendants' him, which if true would be a basis for motion to dismiss or for summary judgment overcoming the exhaustion requirement, when the plaintiff alleged in his complaint defendants have not satisfied their burden (at that he failed to exhaust his administrative this stage of the litigation) of proving that remedies because he was erroneously told plaintiff's claim is not exhausted, even by prison officials that he had to wait until though plaintiff did withdraw his grievance. an investigation was complete before filing a See Croak, 312 F.3d at 112, accord Pavey, formal grievance. Id. at 111-12. The court 663 F.3d at 906. Whether the alleged held that plaintiff's affidavit that prison misrepresentation by prison officials officials misrepresented the grievance actually occurred and caused plaintiff to procedure to him was sufficient to create a prematurely withdraw his grievance are "factual question that is disputed" and that factual issues that the Court cannot resolve without further discovery, the court at this stage of the proceeding. However, concluded "there is insufficient evidence to defendants can renew this argument at the find that [plaintiff] failed to exhaust his summary judgment stage once discovery is administrative remedies." Id. at 112. complete.
In Pavey, the Seventh Circuit affirmed a grant of summary judgment to defendants because plaintiff's testimony did not support his assertion that prison officials misled him into believing that he had complied with the grievance process. 663 F.3d at 906.
However, the court could only make this determination because discovery had been conducted, and it is clear from the court's
For the foregoing reasons, the Court denies defendants' motion for judgment on the pleadings.
JOSEPH F. BIANCO United States District Judge
Dated: December 28, 2012 Central Islip, NY