United States District Court, S.D. New York
OPINION & ORDER
S. ROMAN UNITED STATES DISTRICT JUDGE.
Marc Barker brings this action pro se against
Defendants Deputy Superintendent of Reception Betsy Smith,
Sergeant ("Sgt.") James Osinski, Lieutenant
("Lt.") Vishnu Limaye, and Correction Officer
("CO.") George Ekwerekwu (collectively,
"Defendants"), pursuant to 42 U.S.C § 1983.
Before this court is Defendants' motion to
dismiss.For the foregoing reasons, Defendants'
motion to dismiss is GRANTED in part.
following facts are drawn from Plaintiff's Complaint, ECF
No. 2, and are accepted as true for the purpose of this
crux of Plaintiff's claim is that he was falsely accused
of an assault that occurred at Downstate Correctional
Facility and wrongfully placed in the SHU on June 9, 2015.
(Compl. at 3.)
9, 2015, Sgt. Osinski issued an Inmate Misbehavior Report
(“IMR”), signed by C.O. Ekwerekwu, charging
Plaintiff with violating Department of Corrections and
Community Supervision (“DOCCS”) Rules 100.10 and
104.11, which prohibit assaults upon inmates and violent
conduct, respectively. (See Compl. at 36; Def. Mem.
at 1.) Specifically, the IMR indicates that on the same date,
Plaintiff was serving as the housing unit porter while
another inmate was in the shower, that they were both in the
“25-30 tier” and that they were the only two
inmates outside of their cells at this time. (Compl. at 36.)
According to the report, while the other inmate was
showering, the housing unit officer who was presumably C.O.
Ekwerekwu, instructed Plaintiff to pick up supplies from the
east lobby, and observed him leaving tier 25-30 to do so.
(Id.) According to C.O. Ekwerekwu, approximately one
minute later, the other inmate came from tier 25-30 asking
where the porter (Plaintiff) went. (Id.) C.O.
Ekwerekwu observed a two-and-a-half-inch laceration on the
left side of the inmate victim's face, and noted that the
inmate victim was bleeding. (Id. at 36-38.)
Osinski was notified, and questioned Plaintiff about the
incident in the east lobby (see id. at 8, 37.)
Plaintiff told Sgt. Osinski that he “didn't have a
problem with anyone on the date of 6.9.15.”
(Id. at 8.) Sgt. Osinski also observed the inmate
victim and determined that the injury sustained was
consistent with a “cutting instrument.”
(Id. at 38.) Both inmates' cells were searched,
along with common areas of their Housing Unit 2-B, and no
weapon or cutting instruments were found. (Id.)
Nonetheless, it was determined that Plaintiff was responsible
for the assault, and Lt. Limaye approved Plaintiff's
transfer to the SHU on the same date as the incident (the
“Incident”). (Id. 8, 38.) Plaintiff
contends that Sgt. Osinski wrote a false misbehavior report
to “assist/cover up” for C.O. Ekwerekwu's
failure to properly monitor his assigned post, the housing
unit where the assault occurred. (Id. at 4.)
June 25, 2015 through July 13, 2015, a Superintendent Hearing
was held by DSR Smith regarding the Incident. (Id.
at 23.) At the conclusion of the hearing DSR Smith found
Plaintiff guilty of violating DOCCS Sections 100.10 and
104.11. (Id.) In her report on the disposition
rendered, DSR Smith indicated that she relied upon: the
misbehavior report, which indicated Plaintiff was in the
housing unit and the relevant tier at the time of the
incident; Plaintiff's own testimony that he was in the
tier while the victim inmate was in the shower; C.O.
Ekwerekwu's testimony about the timeframe of the
incident; testimony from officers and inmates that all other
cell doors were locked; and the victim inmate's testimony
that he was in the shower in tier 25-30 when he believes he
was cut. (Id. at 25.) As to the reasons for her
disposition, DSR Smith noted she considered Plaintiff's
prior institutional history and that prior sanctions and
restrictions had failed to deter him. (Id.)
Plaintiff was sentenced to 270 days in the SHU, beginning on
June 9, 2015, loss of various privileges, and loss of
“good time” for six months. (Id. at 23.)
Plaintiff appealed DSR Smith's determination to the
Commissioner, and obtained a reversal on September 15, 2015.
(Id. at 22.) However, Plaintiff was not released
from the SHU until October 6, 2015. (Id. at 12.)
ON A MOTION TO DISMISS
Rule 12(b)(6), the inquiry is whether the complaint
“contain[s] 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 Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)); accord Hayden v.
Paterson, 594 F.3d 150, 160 (2d Cir. 2010). “While
legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.”
Id. at 679. To survive a motion to dismiss, a
complaint must supply “factual allegations sufficient
‘to raise a right to relief above the speculative
level.'” ATSI Commc'ns, Inc. v. Shaar Fund,
Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting
Twombly, 550 U.S. at 555). The Court must take all
material factual allegations as true and draw reasonable
inferences in the non-moving party's favor, but the Court
is “‘not bound to accept as true a legal
conclusion couched as a factual allegation, '” or
to credit “mere conclusory statements” or
“[t]hreadbare recitals of the elements of a cause of
action.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555).
determining whether a complaint states a plausible claim for
relief, a district court must consider the context and
“draw on its judicial experience and common
sense.” Id. at 662. A claim is facially
plausible when the factual content pleaded allows a court
“to draw a reasonable inference that the defendant is
liable for the misconduct alleged.” Id. at
with regard to pro se Plaintiffs, the Court must
“construe [ ] [the] [Complaint] liberally and
interpret[ ] [it] to raise the strongest arguments that [it]
suggest[s].” Martinez, 164 F.Supp.3d at 508
(quoting Sykes v. Bank of Am., 723 F.3d 399, 403 (2d
Cir. 2013)). Yet, “the liberal treatment afforded to
pro se litigants does not exempt a pro se
party from compliance with relevant rules of procedural and
substantive law.” Id. (quoting Bell v.
Jendell, 980 F.Supp.2d 555, 559 (S.D.N.Y. 2013), and
citing Caidor v. Onondaga Cty., 517 F.3d 601, 605
(2d Cir. 2008) (“[P]ro se litigants generally are
required to inform themselves regarding procedural rules and
to comply with them.”)).
Allegations as to the Misbehavior Report
asserts that Sgt. Osinski wrote a false misbehavior report to
assist or “cover up” for C.O. Ekwerekwu's
failure to properly monitor the housing unit where the
assault occurred. (Compl. at 4.) Defendant contends that
Plaintiff has failed to exhaust his administrative remedies
under the Prisoner Litigation Reform Act (“PLRA”)
prior to bringing this action, and that Plaintiff's
claims as to the false misbehavior report must therefore be
PLRA bars prisoners from bringing suit in federal court
regarding their confinement “until such administrative
remedies as are available are exhausted.” Hicks v.
Adams, 16-509 (PR), 2017 WL 2628874, at *1 (2d Cir. June
19, 2017) (summ. order) (citing 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.”
Johnson v. Annucci, 15-CV-3754 (NSR), 2016 WL
3847745, at *3 (S.D.N.Y. July 7, 2016) (citing Giano v.
Goord, 380 F.3d 670, 675 (2d Cir. 2004) (quoting
Porter v. Nussle, 534 U.S. 516, 532 (2002))).
PLRA's grievance process requires an inmate of a New York
State facility to exhaust his administrative remedies through
a three-tiered Inmate Grievance Program (“IGP”)
pursuant to 7 N.Y.C.R.R. § 701.5. See Johnson v.
Fraizer, 16-CV-6096 (CJS), 2016 WL 7012961, at *3
(W.D.N.Y. Dec. 1, 2016).
DOC[C]S' Inmate Grievance Program (“IGP”) has
a regular three-tiered process for adjudicating inmate
complaints: (1) the prisoner files a grievance with the
Inmate Grievance Resolution Committee (“IGRC”),
(2) the prisoner may appeal an adverse decision by the IGRC
to the superintendent of the facility, and (3) the prisoner
then may appeal an adverse decision by the superintendent to
the Central Officer Review Committee (“CORC”)
Id. (citing Quezada v. Ercole, 09-CV-2832
(DLC), 2011 WL 3251811, at *4 (S.D.N.Y. July 29, 2011)
(citing Espinal v. Goord, 554 F.3d 216, 224 (2d Cir.
2009))); see Khalild v. Reda, 00-CV-7691 (LAK)
(GWG), 2003 WL 42145, at *3 (S.D.N.Y. Jan. 23, 2003)
(“An inmate has not exhausted his administrative
remedies until he goes through all three levels of the
grievance procedure.”) (internal quotation marks and
to exhaust is an affirmative defense under the PLRA”
and, as such, “inmates are not required to specially
plead or demonstrate exhaustion in their complaints.”
Roland v. Smith, 907 F.Supp.2d 385, 388 (S.D.N.Y.
2012) (citing Jones v. Bock, 549 U.S. 199, 216
(2007)). Instead, defendants bear the burden of demonstrating
that the plaintiff's claim is not exhausted. Key v.
Toussaint, 660 F.Supp.2d 518, 523 (S.D.N.Y. 2009).
However, “a district court … may dismiss a
complaint for failure to exhaust administrative remedies if
it is clear on the face of the complaint that the plaintiff
did not satisfy the PLRA exhaustion requirement.”
Williams v. Correction Officer Priatno, 829 F.3d
118, 122 (2d Cir. 2016); see also Lee v.
O'Harer, 13-CV-1022, 2014 WL 7343997 (TJM) (ATB), at
*3 (N.D.N.Y. Dec. 23, 2014) (“Dismissal under Rule
12(b)(6) for failure to exhaust is appropriate if such
failure is evidenced on the face of the complaint and
to the Complaint, Plaintiff did utilize the IGP, but did so
to challenge the way in which the Superintendent Hearing was
conducted, and the ultimate determination. (See
Compl. at 16.) (“Which claim(s) in this complaint did
you grieve?” “The manner in which the tier
hearing was being conducted.”) Plaintiff was told that
this issue could not be pursued through the grievance
process, and later appealed the outcome of the hearing.
(Id.) Though a disciplinary appeal is sufficient to
exhaust a claim that Plaintiff was deprived of due process at
a disciplinary hearing, “allegations of staff
misconduct related to the incidents giving rise to the
discipline must be grieved.” Scott v. Gardner,
287 F.Supp.2d 477, 489 (S.D.N.Y. 2003), on
reconsideration in part, 344 F.Supp.2d 421 (S.D.N.Y.
2004), and on reconsideration in part, 2005 WL
984117 (S.D.N.Y. Apr. 28, 2005); see Kimbrough v.
Fischer, 13-CV-100 (FJS) (TWD), 2014 WL 12684106, at *6
(N.D.N.Y. Sept. 29, 2014), report and recommendation
adopted, 2016 WL 660919 (N.D.N.Y. Feb. 18, 2016)
(“An inmate ‘cannot satisfy the PLRA's
exhaustion requirement as to grievable matters that do not
directly relate to the conduct of a hearing simply by
alluding to them in his administrative appeal of the hearing
decision. For example, if at the hearing the inmate asserts
… allegations of misconduct by the correction officers
involved in the underlying events, the inmate cannot
adequately exhaust his remedies for PLRA purposes through his
administrative appeal of the hearing decision; he must
separately grieve the alleged misconduct of the
officers”) (citing Rosales v. Bennett, 297
F.Supp.2d 637, 639 (W.D.N.Y. 2004)); Mateo v.
Gundrum, 10-CV-1103 (GLS) (TWD), 2013 WL 5464722, at *2,
4, 8 (N.D.N.Y. Sept. 30, 2013) (finding that plaintiff had
not exhausted administrative remedies with respect to claim
involving false misbehavior report where he had not filed a
grievance as to that issue, even though in his disciplinary
appeal he indicated he believed Defendant had written false
report); see also Mayo v. Lavis, 16-1664 (PR), 2017
WL 1493680, at *2 (2d Cir. Apr. 26, 2017) (claims against
defendants for writing false misbehavior report and providing
false testimony at disciplinary hearing, even when construed
as retaliation claim, barred for failure to exhaust through
does not attempt to contradict Defendants' contentions,
nor did he oppose Defendants' motion to dismiss. As such,
the Court cannot assess, for instance, whether Plaintiff
contends he attempted to appropriately grieve his claim
concerning the allegedly false misbehavior report, and
whether his administrative remedies were in fact
“unavailable” such that he should be excused from
failing to exhaust these claims. As such, because Plaintiff
failed to utilize the appropriate grievance process for his
claims as to the Misbehavior Report prior to bringing suit,
the Court must conclude that he has failed to exhaust
available administrative remedies. See Ross v.
Blake, 136 S.Ct. 1850, 1857 (2016) (“mandatory
exhaustion statutes like the PLRA establish mandatory
exhaustion regimes, foreclosing judicial discretion”).
For these reasons, Plaintiff's claims against Osinski and
Ekwerekwu concerning the allegedly false misbehavior report
are dismissed without prejudice for renewal to the extent it
is possible for Plaintiff to exhaust these claims, or
alternatively, to the extent he can allege the administrative
remedies were “unavailable” as described in
Personal Involvement of Lt. Limaye
to the misbehavior report, Plaintiff alleges that the Unusual
Incident Report was also created as an attempt to conceal
Defendants C.O. Ekwerekwu's and Sgt. Osinski's
failure to perform their duties, and that the author
concluded that Plaintiff committed the underlying offense
without proper evidence, relying only upon C.O.
Ekwerekwu's account. (See Compl. at 3, 6.)
Plaintiff also appears to allege that this report was
utilized at his hearing. (See, e.g., id. at
6.) According to the Unusual Incident Report appended to
Plaintiff's Complaint, Limaye appears to be the author.
(Id. at 37.) Thus, drawing all reasonable inferences
in Plaintiff's favor, he appears to allege a claim
against Limaye for authoring a false unusual incident report.
Defendants do not address any potential claims against Limaye
for allegedly authoring a false Unusual Incident Report to
protect Ekwereku and Osinski.
also alleges that Limaye approved Plaintiff's initial
confinement in the SHU “with no reliable
evidence.” (Id. at 8.) Defendants counter that
- to the extent Plaintiff asserts a claim against Limaye for
the role he played in placing Plaintiff in the SHU - Limaye
can only be held responsible for the time period between June
9, 2016, when Plaintiff was first placed in the SHU prior to
Plaintiff's Superintendent Hearing, and July 13, 2015,
the date DSR Smith issued her determination. (see
Def. Mem. at 12.) Defendants also assert that Plaintiff has
failed to establish personal involvement of Lt. Limaye
because he fails to allege that: Limaye authored or endorsed
the allegedly false Misbehavior Report; testified at
Plaintiff's hearing; contributed in any way to the
finding of Plaintiff's guilt, or that Limaye's