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Frasier v. McNeil

United States District Court, S.D. New York

March 5, 2015

CYNTHIA McNEIL, AMY MARTINEZ, and TARSHA BETHEA, in their official and individual capacities, Defendants.


PAUL A. ENGELMAYER, District Judge.

Plaintiff Keyonnie Frasier, proceeding pro se, brings this civil rights action under 42 U.S.C. § 1983 against three corrections officers, Cynthia McNeil, Amy Martinez, and Tarsha Bethea, alleging that they used excessive force against her, and thereby violated her constitutional rights, while she was incarcerated at the Bedford Hills Correctional Facility ("Bedford Hills"). On July 25, 2014, defendants McNeil and Martinez moved to dismiss Frasier's Amended Complaint under Federal Rule of Civil Procedure 12(b)(6), based on Frasier's failure to exhaust administrative remedies as required by the Prison Litigation Reform Act of 1995 ("PLRA"). Dkt. 38.[1]

Before the Court is the December 19, 2014 Report and Recommendation of the Honorable James C. Francis IV, United States Magistrate Judge, recommending that the Court deny McNeil and Martinez's motion. Dkt. 45 ("Report"). For the reasons that follow, the Court adopts the Report's recommendation that McNeil and Martinez's motion be denied.

I. Background[2]

On November 26, 2013, Frasier, a former inmate of Bedford Hills, filed the Complaint against McNeil, Martinez, and Bethea, as well as other prison staff (nurses Gabaco and Laslow, Sergeant Robert Arndt, and Sabina Kaplan, the superintendent of Bedford Hills). Dkt. 2 ("Complaint").[3] Frasier alleges that on December 25, 2012, McNeil, Martinez, and Bethea violated her Eighth Amendment rights by using excessive force against her during a visit to the Regional Medical Unit's "strip frisk" room, and that as a result of being punched, scratched, and having her earrings pulled out of her ear, Frasier suffered a broken right ankle, lacerations to her right arm, split lip, and bruises.

On December 17, 2013, the Court issued an order allowing Frasier to proceed in forma pauperis, and an order directing the U.S. Marshals to serve defendants on Frasier's behalf. Dkt. 5, 7. On March 10, 2014, the Court referred the case to Judge Francis for general pretrial supervision. Dkt. 17. On May 16, 2014, McNeil and Martinez, joined by Gabaco, Laslow, Arndt, and Kaplan, filed a motion to dismiss pursuant to Rule 12(b)(6), Dkt. 28, and a supporting memorandum of law, Dkt. 29 ("Def. Br.").

On June 20, 2014, Frasier filed the Amended Complaint, raising claims against only McNeil, Martinez, and Bethea. Dkt. 35 ("Amend. Compl."). On July 24, 2014, McNeil and Martinez filed a motion to dismiss the Amended Complaint, Dkt. 38, and a supporting memorandum of law, Dkt. 39 ("Def. Amend. Br."). Frasier did not file papers in opposition to the motion to dismiss.

On December 19, 2014, Judge Francis issued the Report, recommending that the motion to dismiss be denied on two grounds. Dkt. 45.

First, Judge Francis found, Frasier had alleged facts under which her failure to exhaust, specifically, her failure to file an administrative appeal, would be excused under the PLRA. Id. at 11. In particular, after timely filing her grievance, Frasier had been notified by the prison superintendent that her grievance had been referred to the Inspector General's Office for investigation. (On the record before the Court, it appears that no further action was taken, or at least communicated to Frasier.) Under the administrative review and appeals system for prisoner grievances, such an investigation is to be requested "[i]f it is determined that the grievance is a bona fide harassment issue." N.Y. Comp. Codes R. & Regs. ("NYCRR"), tit. 7 § 701.8(d). And, where an inmate has received favorable relief, there is no basis for the inmate to file an administrative appeal. Report 9 (citing Hairston v. LaMarche, No. 05 Civ. 6642 (KMW) (AJP), 2006 WL 2309592, at *9 (S.D.N.Y. Aug. 10, 2006)). It therefore would not have been clear to Frasier what, if anything, further she had been obligated to do to exhaust her claims administratively. Id. at 9-11.

Second, Judge Francis noted, even if Frasier had failed to exhaust her administrative remedies, the ordinary recourse would be for the Court to dismiss the inmate's case without prejudice, so as to give the inmate the opportunity to exhaust within the administrative system and then return to federal court if need be. Report 11 (citing Hairston, 2006 WL 2309592, at *10). But Frasier (in July 2014) had since been released from DOCSS custody. Accordingly, Judge Francis concluded, Frasier's claim should be allowed to proceed in federal court on the merits. Id. at 12.

On February 2, 2015, defendants McNeil and Martinez filed objections to the Report. Dkt. 50 ("Def. Obj."). Frasier did not file an opposition to these objections.

II. Discussion

A. Standard of Review

In reviewing a Report and Recommendation, a district court "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)(1)(C). When specific objections are made, "[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b)(3); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). To accept those portions of the report to which no timely objection has been made, "a district court need only satisfy itself that there is no clear error on the face of the record." King v. Greiner, No. 02 Civ. 5810 (DLC), 2009 WL 2001439, at *4 (S.D.N.Y. July 8, ...

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