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Munoz v. Eliezer

United States District Court, S.D. New York

March 30, 2018

CARLOS MUNOZ, Plaintiff,
BENTIVEGNA, DR., Defendants.


          NELSON S. ROMAN, United States District Judge

         Plaintiff Carlos Munoz ("Plaintiff), proceeding/jro se, commenced this action on July 28, 2016, pursuant to 42 U.S.C § 1983 for alleged Eighth Amendment violations. (See Complaint ("Compl."), (ECF No. 2).) Plaintiffs claims are asserted against five corrections officers, Robenson Eliezer ("Eliezer"), Keith G. Chase ("Chase"), Shaun A. Medina ("Medina"), Jeffrey Benaim ("Benaim"), and James G. Goehl ("Goehl") (collectively, the "Defendant Officers"), and two medical professionals, nurse Aileen McCarthy ("McCarthy") and Dr. Robert V. Bentivegna ("Dr. Bentivegna") (collectively the "Medical Defendants"). (Id.) By Order to Amend dated August 16, 2016, this Court directed Plaintiff to file an amended complaint detailing the personal involvement of the corrections officers and the manner in which his medical care was inadequate. (See Order to Amend (ECF No. 6), at 4-5.) On September 22, 2016, Plaintiff filed his Amended Complaint ("Am. Compl.") attempting to clarify his claims against the Defendants; this iteration is the operative complaint. (See Am. Compl. (ECF No. 8).)

         Presently before the Court is Defendants' motion to dismiss the Amended Complaint for failure to state a cause of action pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Defendants' Brief in Support of the Motion to Dismiss ("Defs. Br.") (ECF No. 35), at 1 .)[1] For the following reasons, Defendants' motion is GRANTED in part and DENIED in part.


         The following facts are taken from Plaintiffs Complaint and are accepted as true for purposes of this motion.[2]

         Plaintiff is a pro se inmate housed at Green haven Correctional Facility ("Green haven"), a prison within the New York State Department of Corrections and Community Supervision ("DOCCS"). Plaintiff initiated this action on or about July 28, 2016, for alleged violations of his Eighth Amendment right to be free from cruel and unusual punishment and his right to adequate medical care. (See Am. Compl. at 4-7.)[3] Plaintiff alleges that the Defendant Officers violated his Eighth Amendment constitutional right to be free from excessive force when they allegedly attacked him on March 27, 2016. (See Am. Compl. at 4-5, unnumbered attached page ("UAP") 1.) As to the Medical Defendants, Plaintiff alleges that he was denied adequate medical care. (Id.)

         On March 27, 2016, Plaintiff was waiting to return to his cell from receiving his medication, which return was being directed by Defendant Eliezer. (See Am. Compl. at 4.) While waiting, Plaintiff asked Eliezer if he could go to the bathroom, as his "company ha[d] not been called to the messhall" yet. (Id.) In response, Eliezer said "get the fuck out of here and go to chow"; Plaintiff complied, but asked if "chow [was] mandatoiy on a [sic] Easter Sunday." (Id.) After Defendant Eliezer indicated he did not "make the rules", Plaintiff began walking "out the door" when he was suddenly called back by Eliezer who told him to "get on the fucking wall" and then frisked him. (Id. at 4-5.) After Plaintiff complied with the orders, Eliezer began screaming profanities in Plaintiffs face and "smack[ing him] on [the] neck and ... face." (Id. at 5.)

         After this interaction, the remaining Defendant Officers became involved. Plaintiff alleges that he was thrown to the floor while Goehl very aggressively attempted to place handcuffs on his wrists. (Id.) While this was occurring, Eliezer, Chase, Medina, and Benaim began to "knee [Plaintiff] in the [left side of his] face [and] leg." (Id., UAP 1.) Plaintiff was brought to his feet, and "roughly slammed into the wall." (Id.) Thereafter, Plaintiff was directed into a hallway, his handcuffed wrists were raised by Goehl to expose his ribs, and he was beaten with batons by Eliezer, Chase, Medina, and Benaim in the "left leg, left shoulder and left side ribs." (Id.) Plaintiff contends that as a result of this alleged excessive force, he suffered a dislocated shoulder and three-to-four broken ribs. (Id.)

         Immediately following this incident, Plaintiff was escorted to the Special Housing Unit ("SHU") where he was examined by nurse McCarthy. (Id.) McCarthy examined Plaintiff "from the neck up" and noted the existence of lacerations on his head and a bruise under his right eye, but "never examined [Plaintiffs] shoulder or leg or ribs at all." (Id.) Plaintiff further alleges that "nothing was done." (Id.)

         Two days later, Plaintiff visited Dr. Bentivegna, complaining of pain to his chest and ribs and extreme difficulty breathing, and requested that he be transferred to an outside hospital. (Id.) On April 6, 2016, nine days later, Plaintiff received x-rays which revealed "a dislocated shoulder" and three-to-four broken ribs. (Id.) Plaintiff also alleges that he was "denied medical attention for [his] injuries by Dr. Bentivegna." (Id.)


         I. Standard of Review

         A. Rule 12(b)(6)

         On a 12(b)(6) motion, dismissal is proper unless the complaint "contain[s] sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbalt 556 U.S. 662, 678 (2009) (quoting Bell Ail Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When there are well-pled factual allegations in the complaint, "a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 679.

         The critical inquiry is whether the plaintiff has pled sufficient facts to nudge the claims "across the line from conceivable to plausible." Twombly, 550 U.S. at 555. A motion to dismiss will be denied where the allegations "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.

         Where a pro se Plaintiff is concerned, Courts must construe the pleadings in a particularly liberal fashion. Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). The Court must therefore interpret the pleading "to raise the strongest arguments that [it] suggest[s]." Harris v. City of N. Y., 607 F.3d 18, 24 (2d Cir. 2010) (internal quotations and citation omitted). Nevertheless, a pro se plaintiffs pleading must contain factual allegations that sufficiently "raise a right to relief above the speculative level, " Jackson v. N.Y.S. Dep't of Labor, 709 F.Supp.2d 218, 224 (S.D.N.Y. 2010), and the Court's duty to construe the complaint liberally is not "the equivalent of a duty to re-write it, " Geldzahler v. New York Medical College, 663 F.Supp.2d 379, 387 (S.D.N.Y. 2009).

         II. Exhaustion

         Defendants first contend that Plaintiffs claims should be dismissed for failure to exhaust. (See Defs. Br. at 4-6.) In support of this contention, Defendants provide an affidavit of Jeffrey Hale, Assistant Director of the Inmate Grievance Program at DOCCS. (See Declaration of Collen K. Faheity (ECF No. 36), Exhibit A, Declaration of Jeffery Hale in Support of Defendants' Motion dated April 18, 2017 ("Hale Decl.").)

         The Prison Litigation Reform Act ("PLRA") precludes the filing of an action "with respect to prison conditions under [42 US.C. § 1983] ... by a prisoner confined in any jail, prison or other correction facility until such administrative remedies as are available are exhausted." Williams v. Corr. Officer Priatno, 829 F.3d 118, 122 (2d Cir. 2016) (internal quotations omitted).

         Whether an inmate has exhausted all administrative remedies turns on a review of "the state prison procedures [available] and the prisoner's grievance. ..." See Espinal v. Goord, 558 F.3d 119, 124 (2d Cir. 2009) (citing Jones v. Bock, 549 U.S. 199, 218 (2007)). Grievances at DOCCS are governed by the Inmate Grievance Program ("IGP"), which is based on a three-tiered system. Id. at 125. To adjudicate an inmate complaint: "(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.; see also N.Y. Comp. Codes. R. & Regs., tit. 7, § 701.7 (1999).

         Notably, exhaustion is an affirmative defense, not a pleading requirement; thus, inmate plaintiffs need not "specially plead or demonstrate exhaustion in their complaints." Jones, 549 U.S. at 216. Instead, Defendants must demonstrate lack of exhaustion. Colon v. N. Y.S. Dep't of Corr. & Cmty. Supervision, No. 15-CV-7432(NSR), 2017 WL 4157372, at *5 (S.D.N.Y. Sept. 15, 2017) (citing Key v. Toussaint, 660 F.Supp.2d 518, 523 (S.D.N.Y. 2009)).

         Dismissal on a 12(b)(6) motion for failure to exhaust is permissible where "it is clear on the face of the complaint that the plaintiff did not satisfy the PLRA exhaustion requirement." Williams, 829 F.3d at 122; see also Parris v. N.Y.S. Dep't Corr. Servs., 947 F.Supp.2d 354, 261 (S.D.N.Y. 2013) (citing Jonson v. Westchester Cnty. Dep't of Corr. Med. Dep't, No. 10-CV-6309, 2011 WL 2946168, at *2 (S.D.N.Y. July 19, 2011) for proposition that denial of motion appropriate where complaint ambiguous as to exhaustion).

         Further, on such a motion, where a court is confined to the four corners of the complaint, the documents attached thereto, and things of which it is entitled to take judicial notice, see, e.g., Kleinman v. Elan Corp., 706 F.3d 145, 152 (2d Cir. 2013); Gonzalez v. Hasty, 651 F.3d 318, 321 (2d Cir. 2011), a court is only permitted to consider outside documents related to exhaustion and submitted by defendants under limited circumstances, see Smith v. Miller, No. 15-CV-9561(NSR), 2017 WL 4838322, at *5 (S.D.N.Y. Oct. 23, 2017) (noting courts can take judicial notice of administrative records in Section 1983 cases in limited circumstances). Those include instances where "the complaint a) was the standard pro se form complaint that has a check-box regarding exhaustion, b) contained allegations clearly stating that the inmate had exhausted his administrative remedies, or c) clearly pointed to the fact that the inmate had, in fact, not exhausted." Colon, 2017 WL 4157372, at *5.

         This Court declines to consider the Hale Declaration because the Amended Complaint does not fall into any of the three above-articulated categories. First, though it is a form complaint, it does not have "a check-box regarding exhaustion", Colon, 2017 WL 4157372, at *5; indeed, the pre-printed text of the document only references exhaustion insofar as it generally reminds inmates that exhaustion is a requirement to filing a federal lawsuit, (see Am. Compl. at 6.) Second, the Amended Complaint contains no "allegations clearly stating that [Plaintiff) had exhausted his administrative remedies." Colon, 2017 WL 4157372, at *5. Plaintiffs listing of grievance numbers and dates, (see Am. Compl., UAP 2), is certainly not a clear statement that Plaintiff has exhausted his ...

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