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Blandon v. Capra

United States District Court, S.D. New York

November 16, 2017

MOISE BLANDON, [1]Plaintiff,

          Moise Blandon Ossining, NY Pro Se Plaintiff

          Bruce J. Turkle, Esq. Assistant Attorney General of the State of New York New York, NY Counsel for Defendants



         Pro se Plaintiff Moise Blandon (“Plaintiff”), currently incarcerated at Sing Sing Correctional Facility, filed the instant complaint (“Complaint”) pursuant to 42 U.S.C. § 1983 against Superintendent Michael Capra (“Capra”), Correction Officer Lerouge R. (“Lerouge”), Correction Officer Sergeant Johnson (“Johnson”) (collectively, “Defendants”), and John Does 1-3, as unknown employees of the Department of Correction & Community Supervision (“DOCCS”). (Compl. (Dkt. No. 2).) Plaintiff alleges that Defendants violated Plaintiff's rights under the Fourteenth and Eighth Amendments when they failed to protect him from an HIV and Hepatitis C-infected inmate, “Ebanks, ” who entered Plaintiff's cell and bit his face. (See generally Compl.)[2]

         Before the Court is Defendants' Motion To Dismiss the Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Notice of Defs.' Mem. To Dismiss (Dkt. No. 23); Mem. of Law in Support of Defs.' Mem. to Dismiss (“Defs.' Mem.”) (Dkt. No. 24).)[3] Defendants claim that Plaintiff's Action is barred for failure to exhaust available administrative remedies pursuant to the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), and, alternatively, that Plaintiff fails to state a claim. (Defs.' Mem.) For the following reasons, Defendants' Motion is granted.

         I. Background

         A. Factual Background

         The following facts are drawn from Plaintiff's Complaint, (Dkt. No. 2), papers submitted in response to Defendants' request for a pre-motion conference, (May 16, 2017 Letter to the Court (“Obj. Letter”) (Dkt. No. 15)), and Plaintiff's grievance (“the Grievance”) filed in prison, (Decl. of Quandera T. Quick in Supp. of Defs.' Mot. to Dismiss (“Quick Decl.”) Ex. A (“Grievance”) (Dkt. No. 25), and are taken as true for the purpose of resolving the instant Motion.[4] Plaintiff is a prisoner incarcerated at Sing Sing Correctional Facility, and, due to his intellectual disability, was in the custody of the Intermediate Care Program (“ICP”), which worked with the Office of Mental Health (“OMH”), during the time of the alleged events. (Compl. ¶ 8; Obj. Letter at 2.)

         On June 14, 2016, while Plaintiff was confined to his cell, “Ebanks entered and physically assaulted Plaintiff[, ] biting him in the face.” (Compl. ¶ 13.) Ebanks was “well known” to unnamed ICP and OHM employees as “a person infected with HIV and Hepatitis C with the propensity to invoke unprovoke[d] assaults on [ICP] residents and staff.” (Id.; Grievance at 2 (Ebanks' HIV and Hepatitis C status “verified by the medical staff who[] attended [to Plaintiff]” at Sing Sing).) At the time, Ebanks was supposed to be confined to his cell under “keeplock, ” a prison rule which “isolates unruly prisoners to their[] cells and prevents personal encounters with ICP's residents.” (Compl. ¶ 13.) However, Officer Lerouge left “all [of] the cell's crank[s] open” and sat “in the office with the big noisy fan, ” thereby permitting Ebanks to “sneak[] out of his cell and run[] inside [Plaintiff]'s cell.” (Grievance at 1.) Lerouge later claimed that he “hear[d] a commotion [in] the gallery” while “making a round, ” but “at no time did [he] observe the incident[, ] nor did he hear the altercation as he claimed.” (Id.) DOCCS “has failed to account” for how Ebanks entered Plaintiff's cell unnoticed to attack him. (Compl. ¶ 13.)[5]

         Following the incident, Plaintiff “told other inmates to notif[y] [] Officer [Lerouge] that [he] needed [an] emergency sick call because [he] was injured on [his] face.” (Grievance at 1.) Officer Johnson prepared an “official misbehavior report” describing his observations following the attack, but failed “to account [for] his whereabouts prior to the” attack. (Compl. ¶ 14.)[6] He also “falsified the investigative report, ” claiming Plaintiff admitted to “being in a physical altercation in [] D-Gallery North Side [, ] . . . in order to protect [Lerouge's] . . . negligence by leaving all the cell's tracks open and sitting [i]n the office not supervising the gallery[].” (Grievance at 2.) Johnson's action “was incompatible” with DOCCS rules and regulations, which “recognize[] the heighten[ed] risk ICP residents” pose to the general population, requiring “separation and special care for those who suffer mental disabilities” to prevent “unforeseeable impulsive act[s] of violence” from them. (Compl. ¶ 14.) “DOCCS employees are trained to observe[] and prevent unsafe condition[s]” for ICP inmates. (Id.; see also Obj. Letter at 3 (alleging that “each Defendant[] [had] specialized training” under these “demanding” policies, which require compliance “without exception”).) However, no DOCCS employee has “been sanction[ed] or reprimanded” for not following these rules. (Compl. ¶ 15.)

         Plaintiff was hospitalized at the Sing Sing infirmary following the assault. (Grievance at 1.) Plaintiff now has a “permanent visual bite-mark on [his] face” which requires “consistent clinical testing” for HIV and Hepatitis C. (Compl. ¶ 15.) The bite also may “have accelerated” Plaintiff's pre-existing disease, myelogenous leukemia, which could result in “a speedier death.” (Id.)

         B. Procedural Background

         Plaintiff filed the Complaint on January 3, 2017. (Compl.) The Court granted Plaintiff's request to proceed in forma pauperis on January 26, 2017. (Dkt. No. 6.) On February 6, 2017, the Court issued an Order of Service, directing service on the named Defendants and directing that, pursuant to Valentin v. Dinkins, 121 F.3d 72, 76 (2d Cir. 1997), the New York State Attorney General's Office identify John Does 1-3 within 60 days so that Plaintiff may amend his complaint and these Defendants may be served. (Dkt. No. 8.) All 3 named Defendants were served. (See Dkt. Nos. 11, 12, 17.) However, the New York State Attorney General's Office never complied with the Court's Valentin Order, which, as Plaintiff noted in a letter to the Court on April 6, 2017, “inexcusably hampers Plaintiff's ability to . . . . fil[e] a timely Amended” Complaint. (Dkt. 9.)

         Defendants submitted a letter for a pre-motion conference on May 5, 2017, indicating the grounds on which Defendants would move to dismiss. (Dkt. No. 14.) On May 16, 2017, Plaintiff filed a letter to the Court in response to Defendants' pre-motion letter. (Obj. Letter.) In addition to responding to Defendants' arguments regarding the merits of Plaintiff's claims, the letter also addressed exhaustion of administrative remedies, explaining that Plaintiff's intellectual disability prevented him from navigating or comprehending the DOCCS grievance process and therefore constitutes an exception to exhaustion. (Id. at 2.) Plaintiff also attached a letter from the Director of the Inmate Grievance Program at Sing Sing which explained that the grievance he filed regarding Ebanks' attack on him was denied as untimely by an IGP supervisor. (Id. at 4.)

         Pursuant to a memo endorsement by the Court on May 22, 2017 setting a briefing schedule, (Dkt. No. 16), Defendants filed a Motion To Dismiss and accompanying papers on June 22, 2017, and then, after fixing docket entry errors, again on August 24, 2017, (Dkt. Nos. 18, 20; Dkt. Nos. 23-25).[7] The Court granted Plaintiff's request for an extension of time to respond to the Motion, (Dkt. No. 22), but Plaintiff did not ultimately submit papers in opposition to the Motion. On October 4, 2017, the Court denied without prejudice Plaintiff's Motion to Appoint Counsel. (Dkt. No. 29.)

         II. Discussion

         A. Standard of Review

         The Supreme Court has held that although a complaint “does not need detailed factual allegations” to survive a motion to dismiss, “a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration and internal quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). “Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Id. (alteration and internal quotation marks omitted). Instead, a complaint's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint, ” id. at 563, and a plaintiff must allege “only enough facts to state a claim to relief that is plausible on its face, ” id. at 570, if a plaintiff has not “nudged [his or her] claims across the line from conceivable to plausible, the[] complaint must be dismissed, ” id.; see also Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” (citation omitted) (second alteration in original) (quoting Fed.R.Civ.P. 8(a)(2))); id. at 678-79 (“Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”).

         In considering Defendants' Motion To Dismiss, the Court is required to “accept as true all of the factual allegations contained in the [C]omplaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (same). And, the Court must “draw[] all reasonable inferences in favor of the plaintiff.” Daniel v. T & M Prot. Res., Inc., 992 F.Supp.2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012)). Where, 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].” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (per curiam) (internal quotation marks omitted). However, “the liberal treatment afforded to pro se litigants does not exempt a pro se party from compliance with relevant rules of procedure and substantive law.” Bell v. Jendell, 980 F.Supp.2d 555, 559 (S.D.N.Y. 2013) (internal quotation marks omitted);

         Generally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (internal quotation marks omitted). However, when the complaint is pro se, the Court may consider “materials outside the complaint to the extent that they are consistent with the allegations in the complaint, ” Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at *4 n.3 (S.D.N.Y. Aug. 2, 2013) (internal quotation marks omitted), including, “documents that a pro se litigant attaches to his opposition papers, ” Agu v. Rhea, No. 09-CV-4732, 2010 WL 5186839, at *4 n.6 (E.D.N.Y. Dec. 15, 2010) (italics omitted), statements by the plaintiff “submitted in response to [a] defendant's request for a pre-motion conference, ” Jones v. Fed. Bureau of Prisons, No. 11-CV-4733, 2013 WL 5300721, at *2 (E.D.N.Y. Sept. 19, 2013), and “documents that the plaintiff[] either possessed or knew about and upon which [he or she] relied in bringing the suit, ” Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000). Finally, the “failure to oppose Defendants' [M]otion [T]o [D]ismiss does not, by itself, require the dismissal of [Plaintiff's] claims.” Leach v. City of New York, No. 12-CV-2141, 2013 WL 1683668, at *2 (S.D.N.Y. Apr. 17, 2013). Rather, “the sufficiency of a complaint is a matter of law that the court is capable of determining based on its own reading of the pleading and knowledge of the law.” McCall v. Pataki, 232 F.3d 321, 322- 23 (2d Cir. 2000).

         B. Analysis

         1. Exhaustion

         Defendants argue that Plaintiff failed to exhaust his administrative remedies under the PLRA. (Defs.' Mem. 4-7.) “Failure to exhaust administrative remedies is an affirmative defense under the PLRA, not a pleading requirement. Accordingly, inmates are not required to specially plead or demonstrate exhaustion in their complaints. However, a district court still 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. Priatno, 829 F.3d 118, 122 (2d Cir. 2016) (citations and internal quotation marks omitted).

         The PLRA provides that “[n]o action shall be brought with respect to prison conditions under [§] 1983 of this title, 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). This “language is ‘mandatory': An inmate ‘shall bring ‘no action' (or said more conventionally, may not bring any action) absent exhaustion of available administrative remedies.” Ross v. Blake, 136 S.Ct. 1850, 1856 (2016). This requirement applies to “all inmate suits about prison life, ” Porter v. Nussle, 534 U.S. 516, 532 (2007), “regardless of the relief offered through administrative procedures, ” Booth v. Churner, 532 U.S. 731, 741 (2001). Moreover, the PLRA “requires proper exhaustion, which means using all steps that the prison grievance system holds out, and doing so properly. . . . Proper exhaustion demands compliance with a prison grievance system's deadlines and other critical procedural rules.” Williams, 829 F.3d at 122 (alterations, citations, and internal quotation marks omitted). Therefore, a court evaluating exhaustion under the PLRA may not consider any “special circumstances” that it ...

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