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Mitchell v. Sepowski

United States District Court, S.D. New York

September 25, 2014

EDWARD SEPOWSKI, et al., Defendants.


ANDREW L. CARTER, Jr., District Judge.


Plaintiff Marvin Mitchell ("Plaintiff"), formerly an inmate at the Otis Bantum Correctional Center ("OBCC") on Rikers Island and now residing at the Downstate Correctional Facility, brings this action pursuant to 42 U.S.C. § 1983 against Defendants, the City of New York, Edward Sepowski, Alvin Mack and Officer Black ("Defendants"). Plaintiff alleges that the Defendants violated his Eighth Amendment rights when the Rikers Island commissary sold him expired toothpaste and subsequently failed to give adequate medical attention after he fell ill upon using the toothpaste. Defendants have moved to dismiss the complaint. (ECF No. 13.) For the reasons described below, that motion is granted.


Plaintiff alleges that, beginning on April 15, 2013, the Rikers commissary sold him expired toothpaste for "approximately four weeks." (Compl. ¶ 2(d).) Upon using the toothpaste, Plaintiff alleges that he started to "feel[] really sick" with symptoms of headaches, vomiting, sore throat and stomach pain. (Compl. ¶ 2(d).) Plaintiff sought medical care, but claims that the medical staff only gave him some "tablets" which were ineffective, and refused to permit him to see a doctor or otherwise get full medical attention. (Compl. ¶ 2(d).) Plaintiff alleges that he has suffered extreme pain and emotional distress as a result of his use of the toothpaste, (Compl. ¶ 3), and brings suit against the City of New York, commissary owner Edward Sepowski, Alvin Mack, commissary manager, and Officer Black (collectively, the "Defendants").

Plaintiff filed his complaint on July 23, 2013 against Defendants, seeking $780, 000 in damages. (Compl. ¶ 5.) Plaintiff alleges that he filed a grievance at OBCC's Central Punitive Segregation Unit, and was told that the "complaint was confirmed" and that "action [was] being taken." (Compl. ¶ 4(g).) Plaintiff also alleges that Officer Black confirmed that the toothpaste was in fact expired, but that Defendant Mack indicated that he was not aware of the issue. (Compl. ¶ 4(e)(2), (3).) Plaintiff also alleges that he called the Inspector General and reported the incident. (Compl. ¶ 4(g).) Finally, Plaintiff alleges that he never received a response to his complaint and that the Grievance Committee is not able to remedy the situation, (Compl. ¶ 4(g).), and that he was advised by one officer to file a lawsuit. (Compl. ¶ 4(f)(2).)


Defendants jointly move to dismiss on the grounds that Plaintiff has failed to exhaust administrative remedies as mandated by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e, et seq., and that the Complaint fails to allege facts that rise to the level of a constitutional violation. The City also moves separately for dismissal on the ground that the Complaint fails to allege municipal liability, while the individual defendants separately contend that they have qualified immunity against these claims.

A. Legal Standards

On a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court accepts all the factual allegations in the complaint as true and draws all reasonable inferences from them in a plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). Further, pro se complaints are liberally construed to raise the strongest claims that the allegations suggest, particularly in cases involving civil rights violations. Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006); Phillip v. Univ. of Rochester, 316 F.3d 291, 293-94 (2d Cir. 2003). Like all other complaints, pro se complaints must contain sufficient factual allegations to "state a claim of relief that is plausible on its face." Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). However, in line with the "special solicitude" afforded pro se litigants, a pro se complaint is ordinarily not dismissed without an opportunity to amend. Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011); Cucco v. Mortisugu, 222 F.3d 99, 112 (2d Cir. 2000).

B. Administrative Exhaustion

The PLRA provides that "[n]o action shall be brought with respect to prison conditions under section 1983... by a prisoner... until such administrative remedies as available are exhausted." 42 U.S.C. § 1997e(a). Exhaustion prior to filing a lawsuit is compulsory, regardless of "whether [the lawsuit] involve[s] general circumstances or particular episodes, " Porter v. Nussle, 534 U.S. 516, 532 (2002), or of the fit "between a prisoner's prayer for relief and the administrative remedies possible." Booth v. Churner, 532 U.S. 731, 739 (2001). The PLRA requires "proper exhaustion, ' which means using all the steps that the agency holds out, and doing so properly (so that the agency addresses issues on the merits).'" Hernandez v. Coffey, 582 F.3d 303, 305 (2d Cir. 2009) (quoting Woodford v. Ngo, 548 U.S. 81, 90 (2006)).

A failure to exhaust argument is an affirmative defense, such that a plaintiff is not required to plead that they have exhausted administrative remedies in their complaint, and a court can only grant a Rule 12(b)(6) dismissal on this ground if a failure to exhaust is clear from the face of the complaint. Johnson v. Rowley, 569 F.3d 40, 45 (2d Cir. 2009); Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74 (2d Cir. 1998). Further, the administrative process that a prisoner must exhaust is defined "not by the PLRA, but by the prison grievance process itself." Jones v. Bock, 549 U.S. 199, 218 (2007). "The exhaustion inquiry thus requires that [district courts] look at the state prisoner's grievance to determine whether the prisoner has complied with those procedures." Espinal v. Goord, 558 F.3d 119, 124 (2d Cir. 2009). If the prisoner has failed to comply, a court can excuse exhaustion if: (1) no remedies were in fact available to the prisoner; (2) defendants waived or forfeited the nonexhaustion defense through actions inhibiting the prisoner from exhausting; or (3) "special circumstances" exist which justify the prisoner's failure to comply with the administrative procedural requirements. Messa v. Goord, 652 F.3d 305, 309 (2d Cir. 2011).

The Department of Correction's ("DOC") Inmate Grievance Resolution Program ("IGRP") lays out a standard process for adjudicating inmate complaints.[1] First, the inmate must file a grievance with the Inmate Grievance Resolution Committee, and the committee then has up to five days to resolve the grievance informally before attempting to resolve it formally. Second, if no informal resolution is reached within five (5) days of such submission or if the inmate disagrees with the informal resolution, the inmate may request a hearing at the Grievance Office. Third, an unsuccessful and still unsatisfied inmate may appeal to the Warden of the facility where he or she is housed. Fourth, the inmate may appeal any adverse decision by the Warden to the Central Office Review ...

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