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Perez v. City of New York

United States District Court, S.D. New York

June 11, 2015

RAFAEL PEREZ, Plaintiff,
CITY OF NEW YORK, et al., Defendants.


LORNA G. SCHOFIELD, District Judge.

Plaintiff Rafael Perez brings this action pro se against the City of New York and two correctional officers pursuant to 42 U.S.C. § 1983.[1] Perez alleges that, while he was detained for three days at an intake pen in the Anna M. Kross Center ("AMKC") on Rikers Island, Defendants violated his constitutional rights under the First, Eighth and Fourteenth Amendments. Defendants move to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6). Because it is clear from the face of the Complaint that Plaintiff has failed to exhaust the administrative remedies available to him, as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e et seq., Defendants' motion is granted.


For purposes of deciding the motion to dismiss, the factual allegations pleaded in the Complaint are assumed to be true.

On August 12, 2014, Plaintiff was brought into intake at AMKC while he waited for his housing assignment. The intake pen is a temporary holding area, and inmates are required to be transferred out within 12 hours. Officer Brown, who was in charge of housing, intentionally misplaced the housing cards. As a result, on August 13, 2014, Plaintiff went to court without a shower or use of a functioning bathroom for more than 24 hours. After his court appearance, Plaintiff was placed back in the intake pen with at least 35 other inmates without access to a working toilet, shower, bed, medication, recreation, personal property, telephone or law library through August 14, 2014. Captain Shorn was aware of the situation in intake and ignored it. Due to this confinement, Plaintiff contracted fungus and ringworms.

Plaintiff filed a grievance about the incident. On an unspecified date, he filed a grievance at AMKC, but he did not receive a response. On August 13, 2014, Plaintiff informed Captain Shorn about the situation in the intake area. On another unspecified date, Plaintiff contacted the Office of Compliance. Plaintiff's opposition to Defendants' motion to dismiss also asserts that he filed complaints with the Office of the Inspector General and "311 complaint."[2]

Plaintiff's signature on the Complaint is dated August 22, 2014, and the Complaint was docketed on September 16, 2014. Defendants filed a motion to dismiss on February 20, 2015. By Order dated February 23, 2015, Plaintiff's response to Defendants' motion, if any, was due by March 20, 2015. On March 17, 2015, after Plaintiff failed to appear at a scheduled conference, Plaintiff's time to respond to the motion to dismiss was extended sua sponte to April 3, 2015, and Plaintiff was warned that failure to respond could result in dismissal of his case. During a telephone conference held on April 7, 2015, the instant motion was deemed fully submitted because Plaintiff had not filed a response. On April 14, 2015, however, the Court received a submission from Plaintiff that is construed as an opposition to Defendants' motion to dismiss and is considered on the merits.


A. Motion to Dismiss

On a motion to dismiss, a court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in favor of the non-moving party. See Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010). To withstand dismissal, a pleading "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

In construing complaints by plaintiffs proceeding pro se, courts "apply[] a more flexible standard to evaluate their sufficiency than [they] would when reviewing a complaint submitted by counsel." Lerman v. Bd. of Elections in City of N.Y., 232 F.3d 135, 140 (2d Cir. 2000); see Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]"). Thus, a court is obligated to construe pro se pleadings with "special solicitude, ' interpreting the complaint to raise the strongest [claims] that [it] suggest[s].'" Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (alterations in original) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006)).

B. Exhaustion

Under the PLRA, "[n]o action shall be brought with respect to prison conditions under [42 U.S.C.] section 1983... by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "The PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.'" Hill, 657 F.3d at 124 (quoting Porter v. Nussle, 534 U.S. 516, 532 (2002)). "There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court." Jones v. Bock, 549 U.S. 199, 211 (2007).

"In order to exhaust a claim, prisoners must complete the administrative review process in accordance with the applicable procedural rules." Johnson v. Rowley, 569 F.3d 40, 45 (2d Cir. 2009) (per curiam) (internal quotation marks omitted). These rules "are defined not by the PLRA, but by the prison grievance process itself." Jones, 549 U.S. at 218. Failure to exhaust is an affirmative defense, and a defendant must establish "that an administrative remedy was available' in the sense that a grievance policy or procedure existed and covered the dispute at hand.... by reference to a legally sufficient source.'" Hubbs v. Suffolk Cnty. Sheriff's Dep't, No. 14-2472-cv, ___ F.3d ___, 2015 WL 3461791, at *4, *6 (2d Cir. June 2, 2015) (citation omitted). "[I]nmates are not required to specially plead or demonstrate ...

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