United States District Court, S.D. New York
OPINION & ORDER
S. ROMAN, UNITED STATES DISTRICT JUDGE.
Raysun Smith, proceeding pro se and in forma
pauperis, brings this 42 U.S.C. § 1983 action
against Defendants Correction Officer ("CO.")
Miller, CO. Tabor, CO. Rufino, CO. Riollano, CO.
O'Rafferty, Sergeant Del Bianco, CO. Sioco, CO. Allen,
CO. Kothari, Sergeant Llorens, and Captain Harris, alleging
that they violated his constitutional rights while he was in
the custody of the New York State Department of Corrections
and Community Supervision ("DOCCS"). Presently
before the Court is a motion to dismiss portions of
Plaintiffs Complaint submitted by Defendants Rufino,
Riollano, O'Rafferty, Del Bianco, Sioco, Allen, and
Harris. Plaintiff has not submitted an opposition
to this motion. For the following reasons, Defendants'
partial motion to dismiss is GRANTED in part and DENIED in
following facts are derived from the Complaint and are
assumed to be true for the purposes of this motion.
Plaintiffs grievance and the January 5, 2Q15
December 17, 2014, while Plaintiff was incarcerated at
Fishkill Correctional Facility ("Fishkill"), a
corrections officer refused to take Plaintiffs picture and
issue him a new identification card because Plaintiffs hair
was styled in cornrow braids. (Compl. ¶ 23-27, ECF No.
2.) On December 30, 2014, Plaintiff filed a grievance with
the Inmate Grievance Resolution Committee ("IGRC")
at Fishkill, claiming that the officer's refusal to issue
him an identification card was an act of discrimination.
(Id. ¶ 28.) Plaintiff was interviewed by the
acting IGRC supervisor, Defendant Del Bianco, about the
incident on January 5, 2015. (Id. ¶ 29-30.)
During the interview, Defendant Del Bianco became angry and
threatened to place Plaintiff in the Secured Housing Unit
("SHU") if he did not take the cornrow braids out
of his hair. (Id. ¶ 32.) Defendant Del Bianco
further threatened that "he would come up to Plaintiffs
housing unit and check to see if Plaintiff had complied and
if not he would kick his ass" or send one of his
officers to "handle it for him." (Id.
¶ 33.) Plaintiff thereafter left the grievance office
and returned to his housing unit. (Id.)
returning to his housing unit, fearing that he would be sent
to the SHU, Plaintiff packed up all of his belongings as a
precautionary measure. (Id. ¶ 35.) Plaintiff
then left his housing unit to attend his daily assigned
school program. (Id. ¶ 36.) When Plaintiff
returned to his housing unit at about three in the afternoon,
Defendant Miller confronted Plaintiff and asked him why his
property was packed up. (Id. ¶ 43.) Plaintiff
informed Defendant Miller about Defendant Del Bianco's
threat to send Plaintiff to the SHU, to which Defendant
Miller responded, "[G]et the fuck out of here, get away
from my desk." (Id. ¶ 44.) Later that
afternoon as Defendant Miller was distributing inmate mail in
Plaintiffs housing unit, Defendant Miller instructed
Plaintiff to go back to his room and unpack his property.
(Id. ¶ 47.) Plaintiff responded "O.K"
while simultaneously laughing at a piece of mail he had just
received. (Id.) Defendant Miller, believing that
Plaintiff was laughing at him, began yelling at Plaintiff.
(Id. ¶ 48.) Defendant Miller asked Plaintiff,
"Did you just rucking laugh at me?" and instructed
Plaintiff to "go to [his] fucking room, unpack [his]
shit" and not to come out for the night. (M)Defendant
Miller then escorted Plaintiff back to his room, and "in
a threatening manner stood close to Plaintiffs face and
stated 'You think this is a game? Do you know where you
are at?"' and warned, "I'll be back."
(Id. ¶ 49.)
thereafter, Defendant Miller returned to Plaintiffs room with
Defendant Tabor, (Id. ¶ 53.)While Defendant
Tabor stood outside of Plaintiff s room door, Defendant
Miller approached Plaintiff, stated "It's not so
funny now, " and punched Plaintiff in his left eye.
(Id. ¶ 56-57.) Defendant Tabor then ran into
the room and threw Plaintiff to the floor. (Id.
¶ 58.) Plaintiff was subsequently placed in handcuffs.
(Id. ¶ 59.) Defendants Diaz and Kothari ran
into Plaintiffs room and, along with Defendants Miller and
Tabor, proceeded to kick and punch Plaintiff in the face,
head, and body while he remained restrained on the floor.
(Id. ¶ 60-61.)
nearly three minutes, Defendant Sgt. Llorens arrived to
Plaintiffs room. (Id. ¶ 62.) Defendant Llorens
was present for part of the beating and did not intercede.
(Id. ¶ 66.) Plaintiff was then raised to his
feet and placed in a chokehold. (Id. ¶ 64.)
While in this chokehold, Defendants began beating Plaintiff
once again. (Id. ¶ 67.) Plaintiff attempted to
inform Defendant Llorens that he could not breathe.
(Id. ¶ 68.) Defendant Llorens replied,
"Now you know how Eric Gardner felt, " and laughed.
Heal arrived while these events were unfolding and also
failed to intercede. (Id. ¶ 69.) Defendant Heal
and the other officers involved in the beating eventually
escorted Plaintiff to the Regional Medical Unit
("RMU"). (Id. ¶ 70.) The officers
continued to beat Plaintiff as they escorted him to the RMU.
(Id. ¶ 71.)
the RMU, Plaintiff was seen by a nurse-Defendant John Doe
Nurse- who refused to document Plaintiffs injuries.
(Id. ¶ 72-73.) The nurse told Plaintiff,
"[T]he officers said nothing happened to you and
that's what I'm going to write" and that
"even if something did happen to you, you look like you
deserved it, so I'll make sure there's no record of
it because they did their job." (Id. ¶
73-74.) Plaintiff did not receive medical treatment for his
injuries. Plaintiff was thereafter taken to the SHU.
(Id. ¶ 77.)
January 8, 2015, Plaintiff was informed that the IGRC had
denied the grievance Plaintiff filed regarding the alleged
discrimination that took place on December 17, 2014.
(Id. ¶ 78.) Plaintiff appealed the denial to
the facility's superintendent on January 9, 2015.
(Id. ¶ 79.) The superintendent denied
Plaintiffs grievance appeal on January 13, 2015.
(Id. ¶ 81.) Thereafter, Plaintiff filed an
appeal of the superintendent's decision to the Inmate
Grievance Program Central Office Review Committee
("CORC") on January 16, 2015. (Id. ¶
82.) Plaintiff received a denial of his discrimination appeal
from CORC on April 1, 2015. (Id. ¶ 111.)
January 11, 2015, Plaintiff filed an additional grievance
with the IGRC regarding the excessive use of force,
discrimination, and denial of medical treatment that he
experienced on January 5, 2015. (Id. ¶ 80.)
Plaintiffs grievance was denied by the superintendent on
February 5, 2015. Plaintiff filed a timely appeal with CORC.
(Id. ¶ 90.) On April 29, 2015, Plaintiff
received a denial of his excessive force appeal to CORC.
(Id. ¶ 112.)
Acts of Retaliation
Plaintiff filed his grievance for the events that took place
on January 5, 2015, Plaintiff alleges that many Defendants
retaliated against him. First, on February 3, 2015,
Defendants Allen and the John Doe CO. entered Plaintiffs cell
to take a photograph of Plaintiffs cellmate, Troy Evans.
(Id. ¶ 83.) Mr. Evans was asleep at the time,
however, and the unnamed CO. asked Plaintiff to wake him.
(Id. ¶ 84.) Plaintiff responded that waking his
cellmate was not his job. (Id. ¶ 85.) Defendant
Allen, the other officer, and Plaintiff then got into a
verbal dispute. (Id. ¶ 86.)
next day, during lunchtime, Defendant Allen opened the food
slot in Plaintiffs cell door and intentionally threw two cups
of liquid at Plaintiff. (Id. ¶ 88.) Defendant
Allen then told Plaintiff, "[S]ee what happens when you
piss officers off." (Id. ¶ 89.) Plaintiff
alleges that Allen was clearly referring to both the verbal
altercation from the previous day and the January
5thincident. (Id. ¶ 90.) Fearing for
his safety, Plaintiff filed an official grievance relating to
this incident on February 4, 2015. (Id. ¶ 92.)
second incident occurred on February 10, 2015, when Plaintiff
alleges he was issued a retaliatory and false inmate
misbehavior report by Defendant Rufino that was cosigned by
Defendant Sioco. (Id. ¶ 94.) In the report,
Defendant Rufino alleged that Plaintiff was yelling into the
gallery and refused to stop, stating "[G]o ahead, give
me a ticket, I don't care." (Id. ¶
95.) At a disciplinary hearing held on February 18, 2015
regarding the hearing, Plaintiffs cellmate admitted both
orally and in a written statement that he was the one yelling
into the gallery and speaking to Defendant Rufino.
(Id. ¶ 99-98.) Nonetheless, Plaintiff was found
guilty of the allegations. (Id. ¶ 99.)
Plaintiff subsequently filed an appeal to the superintendent
to address the retaliatory ticket on February 8, 2015.
Captain Harris denied the appeal and Plaintiff filed an
appeal with DOCCS on February 27, 2015. (Id. ¶
100.) Plaintiffs DOCCS appeal was denied on March 10, 2015.
(Id. ¶ 102.)
February 22, 2015, Plaintiff also filed a grievance stating
that he was being fed his meals off of dirty trays in
retaliation to the January 5, 2015 incident. (Id.
on March 1, 2015, Defendants Riollano and Rufino searched
Plaintiffs cell. (Id. ¶ 105.) Shortly
thereafter, on March 7, 2015, Defendants O'Rafferty and
Rufino again searched Plaintiffs cell. (Id. ¶
106.) During this second search, Defendants O'Rafferty
and Rufino placed their booted feet onto Plaintiffs pillow
and left footprints on Plaintiffs bedding. (Id.
¶ 107.) Defendants O'Rafferty and Rufino also spit
on Plaintiffs Muslim prayer rug during their search.
(Id. ¶ 108.) Fearing for his safety and
religious freedom, Plaintiff filed a grievance to address the
retaliatory actions of Defendant O'Rafferty.
(Id. ¶ 109.)
initiated this action pursuant to 42 U.S.C. § 1983 on
December 07, 2015, alleging violations of his First and
Eighth Amendment rights. Defendants filed the present motion
to dismiss portions of Plaintiff's Complaint on October
25, 2016. The motions is unopposed.
ON A MOTION TO DISMISS
Rule 12(b)(6), the inquiry for motions to dismiss 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.
Twombfy, 550 U.S. 544, 570 (2007)); accord Hayden v.
Paterson, 594 F.3d 150, 160 (2d Cir. 2010) (applying
same standard to Rule 12(c) motions). "While legal
conclusions can provide the framework of a complaint, they
must be supported by factual allegations." Id.
at 679. 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 Twombfy, 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 679. 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.
as here, a plaintiff proceeds pro se, the court must
'construe  [his] [complaint] liberally and interpret
[it] to raise the strongest arguments that [it]
suggest[s].' " Askew v. Lindsey, No.
15-CV-7496 (KMK), 2016 WL 499261, at *2 (S.D.N.Y. Sept. 16,
2016) (citing 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
apro se party from compliance with relevant rules of
procedural and substantive law.' " Id.
(citing Bell v. Jendell, 980 F.Supp.2d 555, 559
construed, Plaintiffs Complaint alleges claims under the
First and Eighth Amendments. Specifically, Plaintiff suggests
First Amendment retaliation claims against Defendants Allen,
Rufino, Sioco, O'Rafferty, Riollano, and Harris and free
exercise claims against Defendants Rufino and O'Rafferty.
Additionally, Plaintiffs Complaint implies an Eighth
Amendment failure to protect claim against Defendant Del
Bianco. In the present motion, Defendants assert that (1)
Plaintiffs claims should be dismissed for failure to exhaust
administrative remedies, and (2) Plaintiff failed to state a
claim for any constitutional violation. The Couit will
address each set of claims in turn.
first contend that several of Plaintiff s claims should be
dismissed for failure to exhaust administrative remedies,
including (1) Plaintiffs claim against Defendant Allen for
throwing two cups of liquid at him; (2) Plaintiffs claim that
he was being fed his meals off dirty trays; (3) Plaintiffs
claim regarding the search of his cell conducted on March 1,
2015; and (4) Plaintiffs claim regarding the search of cell
conducted on March 7, 2015. (Defs.' Mot. at 9.) The Court
finds that dismissal of Plaintiff s above claims for failure
to exhaust is inappropriate at this time.
the Prison Litigation Reform Act of 1995 ("PLRA"),
"[n]o action shall be brought with respect to prison
conditions under [42 U.S.C. § 1983] or any other federal
law, 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."'
Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004)
(quoting Sorter v. Nussle, 534 U.S. 516, 532,
all remedies '"means using all steps that the agency
holds out, and doing so properly (so that the agency
addresses the issues on the merits).'"
Washington v. Chaboty, No. 09-CV-9199, 2015 WL
1439348, at *6 (S.D.N.Y.Mar. 30, 2015) (quoting Hernandez
v. Coffey, 582 F.3d 303, 305 (2d Cir. 2009)).
"[B]ecause 'it is the prison's requirements, and
not the PLRA, that define the boundaries of proper
exhaustion[J ... [t]he exhaustion inquiiy . .. requires that
[the court] look at the state prison procedures and the
prisoner's grievance to determine whether the prisoner
has complied with those procedures.'" Espinal v.
Goord, 558 F.3d 119, 124 (2d Cir. 2009) (quoting
Jones v. Bock, 549 U.S. 199, 218 (2007)).
person detained or incarcerated at a DOCCS facility must
exhaust all steps of the Inmate Grievance Resolution
("IGR") Program ("IGRP"). See
Robinson v. Henschel, No. 10-CV-6212, 2014 WL 1257287,
at * 10 (S.D.N.Y. Mai-. 26, 2014). The IGRP provides a
three-tiered process for adjudicating inmate complaints: (1)
the prisoner files a grievance with the IGR 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 Office ...