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Harvey v. Corrections Officers

United States District Court, N.D. New York

June 19, 2014

CORRECTIONS OFFICERS 1-6, et al., Defendants.


LAWRENCE E. KAHN, District Judge.


This pro se civil rights action comes before the Court following a Corrected Report-Recommendation filed on March 18, 2014, by the Honorable Therèse Wiley Dancks, U.S. Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3. Dkt. No. 95 ("Report-Recommendation"). Judge Dancks recommends that this action be dismissed with prejudice based on Plaintiff Gregory Harvey's ("Plaintiff") failure to exhaust administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). Report-Rec. at 21. For the following reasons, the Report-Recommendation is accepted and adopted in its entirety.


Plaintiff alleges that he was assaulted by a large group of correctional officers during his incarceration at Clinton Correctional Facility ("Clinton") in 2007, and asserts various causes of action related to this incident. Report-Rec. at 2-3. The Court presumes the parties' familiarity with the factual allegations underlying Plaintiff's claims. For a complete statement of Plaintiff's claims and the supporting facts, reference is made to the Second Amended Complaint. Dkt. No. 50 ("Second Amended Complaint").

After Defendants moved for summary judgment, the Court dismissed all of Plaintiff's claims except for his excessive force claims against Defendants J. Jabout and K. Reyell. Dkt. No. 69. That decision also recognized that, although Defendants had shown that Plaintiff failed to exhaust his administrative remedies, Plaintiff had raised a triable issue of fact as to whether Defendants were estopped from raising the exhaustion defense. Id. at 3. Judge Dancks subsequently held an evidentiary hearing on the question of estoppel, after which she issued the Report-Recommendation finding that Defendants were not estopped from raising the exhaustion defense and that Plaintiff's claims should therefore be dismissed. Dkt. Nos. 88, 89; Report-Rec. at 2. Plaintiff timely filed objections to the Report-Recommendation. Dkt. No. 96 ("Objections").


A district court must review de novo any objected-to portions of a magistrate judge's report-recommendation or specific proposed findings or recommendations therein and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b); accord FED. R. CIV. P. 72(b); see also Morris v. Local 804, Int'l Bhd. of Teamsters, 167 F.App'x 230, 232 (2d Cir. 2006). Although the district court must provide a de novo determination of an objected-to portion of a report, it need not conduct a de novo hearing. United States v. Raddatz, 447 U.S. 667, 675 (1980). A district court may hold a hearing to resolve credibility claims regarding testimony relied on by the magistrate judge, but whether to conduct a hearing and view the witnesses itself lies within the court's discretion. Raddatz, 447 U.S. at 673-81.

If no objections to a report are made, or if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to the magistrate judge, a district court need review that aspect of a report-recommendation only for clear error. Chylinski v. Bank of Am., N.A., 434 F.App'x 47, 48 (2d Cir. 2011); Farid v. Bouey, 554 F.Supp.2d 301, 306-07 & n.2 (N.D.N.Y. 2008); see also Machicote v. Ercole, No. 06 Civ. 13320, 2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011) ("[E]ven a pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal, such that no party be allowed a second bite at the apple by simply relitigating a prior argument.").


Plaintiff raises several objections to the Report-Recommendation. First, Plaintiff appears to argue that Judge Dancks erroneously concluded that Plaintiff could have obtained a writing implement while he was at Clinton and therefore could have written a grievance while there. Objs. at 2. Plaintiff has misread the Report-Recommendation, which states that Plaintiff has not shown that "he had difficulty obtaining materials with which to write a grievance at any time within the 21 days after the assault other than the five days he was at Clinton. " Report-Rec. at 13 (emphasis added). In other words, the Report-Recommendation does not state that Plaintiff could have received a writing implement while he was at Clinton.

Second, Plaintiff argues that inmates at Clinton do not go through the same orientation as inmates at Downstate Correctional Facility ("Downstate"). Objs. at 4. However, the Report-Recommendation discusses whether Plaintiff received orientation at Downstate and Sing Sing Correctional Facility ("Sing Sing"), not Clinton. Report-Rec. at 16. This objection is therefore irrelevant.

Third, Plaintiff appears to argue that he could not have learned of the grievance procedure while at Downstate. Objs. at 4-5. Plaintiff states, among other things, that during the entire time he was at Downstate, he required use of a walking cane. Id. at 5. Because the walking cane was considered a security threat, Plaintiff was not allowed to visit the gym, which is where the law library was housed. Objs. at 5-6. Plaintiff presumably raises this objection because the Report-Recommendation notes that, according to Defendants' exhaustion hearing witness: "there was a library at Downstate, signs for which are posted right by the gymnasium and can be seen when inmates go to recreation. Inmates are permitted to go to the gymnasium almost every day for 45 minutes, and may access the library during that time." Report-Rec. at 8 (citation omitted). However, the Report-Recommendation does not rely on Plaintiff's access to the gym and/or library in finding that he was aware of the exhaustion procedure. Rather, the Report-Recommendation concludes that Plaintiff was aware of the grievance procedure based on: his claim that he sent a grievance to Clinton from Downstate; his testimony that he was later told by staff at Downstate that he needed to exhaust his administrative remedies; and his assertion that he spoke with a grievance representative while at Downstate. Report-Rec. at 15-16. Accordingly, Plaintiff's objection does not provide grounds for rejecting the Report-Recommendation.

Finally, Plaintiff states that he "was not psychiatrically competent to understand the grievance process until April 16th 2009, " and that he can provide documentation of this condition to the Court upon request. Objs. at 7. Plaintiff argues that his mental illnesses-bipolar disorder and paranoid schizophrenia[1]-constitute special circumstances excusing his failure to exhaust available administrative remedies. Id. at 6-8. However, "the special circumstances exception under Hemphill concern[s] an inmate's justifiable confusion regarding the proper DOCS procedure for filing an expedited grievance, not an inmate's mental or emotional condition." See, e.g., Newman v. Duncan, 04CV395, 2007 WL 2847304, at *4 (N.D.N.Y. Sept. 26, 2007) (citing Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004)). Accordingly, an inmate's mental illness is only relevant to a claim of special circumstances to the extent it shows that her failure to properly follow the grievance process resulted from confusion regarding the process. Here, although Plaintiff's medical records do show a history of mental illness, Plaintiff has not shown that his failure to follow the grievance procedure resulted from this condition. On the contrary, as stated in the Report-Recommendation, Plaintiff appears to have sufficiently understood the grievance process by July 2007; confusion-whether or not caused by mental illness-was not the reason for his failure to exhaust. Report-Rec. at 19. Given the long pendency of this case and the development of an extensive evidentiary record, dismissal for non-exhaustion of remedies is appropriate. See Hilson v. Maltese, 09-CV-1373, 2011 WL 767696, at *2 & n.1 (N.D.N.Y. Feb. 28, 2011) (stating that although allegation of special circumstances based on mental illness may be sufficient to survive motion to dismiss, dismissal for failure to exhaust may be proper on motion for summary judgment).


Accordingly, it is hereby:

ORDERED, that the Report-Recommendation (Dkt. No. 95) is ACCEPTED and ADOPTED in its entirety; and it is further

ORDERED, that Plaintiff's Second Amended Complaint (Dkt. No. 50) is DISMISSED with prejudice for failure to comply with the exhaustion requirements of 42 U.S.C. § 1997e(a); and it is further

ORDERED, that the Clerk provide Plaintiff with copies of all unpublished decisions cited in this Decision and Order in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009); and it is further

ORDERED, that the Clerk serve a copy of this Decision and Order on the parties in accordance with the Local Rules.


Lerome Hilson, Comstock, NY, pro se.

Hon. Eric T. Schneiderman, Attorney General of the State of New York, Megan M. Brown, Esq., Assistant Attorney General, Christina L. Roberts-Ryba, Esq., Assistant Attorney General, Albany, NY, for Defendants.



Hon. NORMAN A. MORDUE, Chief Judge.

*1 Plaintiff, an inmate in the custody of the New York State Department of Correctional Services, brought this action for monetary relief under 42 U.S.C. § 1983, claiming defendants sexually assaulted and physically abused him during a "strip frisk" on June 12, 2008. Defendant's motion (Dkt. No. 18) to dismiss the complaint, Fed.R.Civ.P. 12(b)(6), was referred to United States Magistrate Judge Andrew T. Baxter pursuant to 28 U.S.C. § 636(b)(1) (B) and Local Rule 72.3(c). Magistrate Judge Baxter issued a Report and Recommendation (Dkt. No. 30) recommending that the motion be granted with prejudice on the ground of failure to exhaust administrative remedies. Magistrate Judge Baxter also noted that, if it were not for the failure to exhaust, he would recommend dismissal without prejudice on the ground that the complaint does not state a cause of action.

Plaintiff objects (Dkt.Nos. 31, 32). Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court reviews de novo those parts of a report and recommendation to which a party specifically objects. Upon de novo review, the Court accepts the Report and Recommendation's summary of the facts and law and its conclusion that the complaint fails to state a cause of action. The Court rejects the Report and Recommendation insofar as it recommends dismissal with prejudice on the ground of failure to exhaust administrative remedies.

The Prison Litigation Reform Act ("PLRA") requires a prisoner to exhaust all administrative remedies before bringing an action regarding prison conditions. See 42 U.S.C. § 1997e(a). The PLRA requires "proper exhaustion, " which means "compliance with an agency's deadlines and other critical procedural rules." Woodford v. Ngo, 548 U.S. 81, 90 (2006). The Second Circuit recognizes the following exceptions to the exhaustion requirement: (1) that administrative remedies were not in fact available; (2) that prison officials have forfeited, or are estopped from raising, the affirmative defense of non-exhaustion; or (3) that special circumstances justify the prisoner's failure to comply with administrative procedural requirements. See Hemphill v. New York, 380 F.3d 680, 686 (2d Cir.2004).

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). Thus, a court may not properly grant a Rule 12(b)(6) motion on this ground if the failure to exhaust is not apparent from the face of the complaint. See, e.g., Smalls v. Jummonte, 2010 WL 3291587, *3 (S.D.N.Y. Aug. 13, 2010); Pierce v. Monell, 2007 WL 2847317, *6 (N.D.N.Y. Sept. 26, 2007); also see Morris v. Rabsatt, 2010 WL 4668440, *4 (N.D.N.Y. Oct. 18, 2010) (Lowe, M.J., recommending denial of dismissal motion on ground of non-exhaustion based on "the state of the pleadings, the special solicitude that must be granted to pro se civil rights litigants, and the fact that failure to exhaust is an affirmative defense that generally cannot be determined on a motion to dismiss"), adopted by district court, 2010 WL 4668328 (N.D.N.Y. Nov. 9, 2010).

*2 In the instant case, the complaint (Dkt. No. 1) states only that plaintiff did not grieve the matter because he "was mentally unstable at the time" and "had a mental break down." Plaintiff attaches to the complaint the incident report regarding the June 12, 2008 strip frisk, his "Ambulatory Health Record" for that date, a "Chronic Medication Provider Order Form" which appears to cover the period from September 7, 2005 to June 27, 2008; and a "Clinical Drug Information" summary regarding "Citalopram" ("Celexa") which does not appear to be listed on the Chronic Medication Provider Order Form or the Ambulatory Health Record. Whether plaintiffs alleged mental instability constitutes a special circumstance justifying his failure to exhaust cannot be determined on the face of the complaint and the attachments.[1] Thus, Rule 12(b)(6) dismissal is not proper.

In some cases, courts have converted motions to dismiss for non-exhaustion under Rule 12(b)(6) to motions for summary judgment, upon proper notice to the parties. See, e.g., Bennett v. James, 2010 WL 3583410, *3 (S.D.N.Y. Sept. 16, 2010); Smalls, 2010 WL 3291587 at *3. This Court declines to convert the instant motion to one for summary judgment at this point, because, as Magistrate Judge Baxter notes, the complaint fails to state a cause of action.

Construing plaintiffs complaint and other submissions "liberally to raise the strongest arguments that they suggest, " Harris v. City of N.Y., 607 F.3d 18, 24 (2d Cir.2010), the Court grants plaintiff leave to amend his complaint. Plaintiff is advised that, if he submits an amended complaint, it will completely replace and supersede the initial complaint. Thus, he should include in the body of the amended complaint all facts and claims upon which he relies, including those set forth in the initial complaint and in any grievance or other document. The Court suggests that in drafting an amended complaint, plaintiff set forth in separate numbered paragraphs the alleged acts of misconduct; the date on which they occurred; the names of all individuals who participated in the misconduct; and the location where the alleged misconduct occurred.

Accordingly, plaintiff is granted leave to serve an amended complaint. Defendants' motion to dismiss (Dkt. No. 18) is granted to the extent that, if plaintiff fails to serve an amended complaint in accordance with this decision, the action will be dismissed without prejudice; the motion is otherwise denied.

It is therefore

ORDERED that the Report and Recommendation (Dkt. No. 30) is accepted in part and rejected in part; and it is further

ORDERED that defendants' motion to dismiss (Dkt. No. 18) is granted in part and denied in part; and it is further

ORDERED that plaintiff is given leave to file an amended complaint in accordance with this Memorandum-Decision and Order on or before March 25, 2011; and it is further

ORDERED that if plaintiff fails to file an amended complaint on or before March 25, 2011, the action will be automatically dismissed without prejudice, and the Clerk shall enter judgment dismissing the action without prejudice without further order of the Court; and it is further

*3 ORDERED that the Clerk's Office mail a copy of this Memorandum-Decision and Order to ...

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