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Barker v. DSR B. Smith

United States District Court, S.D. New York

August 25, 2017

MARC BARKER, Plaintiff,

          OPINION & ORDER


         Plaintiff 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[1] (collectively, "Defendants"), pursuant to 42 U.S.C § 1983. Before this court is Defendants' motion to dismiss.[2]For the foregoing reasons, Defendants' motion to dismiss is GRANTED in part.


         The following facts are drawn from Plaintiff's Complaint, ECF No. 2, and are accepted as true for the purpose of this motion.

         The 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.)

         On June 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.)

         Sgt. 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.)

         From 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.)


         Under 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).

         In 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 678.

         Furthermore, 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.”)).


         I. Allegations as to the Misbehavior Report

         Plaintiff 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 dismissed.

         The 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))).

         The 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 citation omitted).

         “[F]ailure 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 incorporated documents.”).

         According 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 grievance process).

         Plaintiff 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”[3] 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 footnote three.[4]

         II. Personal Involvement of Lt. Limaye

         Similar 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.

         Plaintiff 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 ...

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