United States District Court, S.D. New York
OPINION AND ORDER
S. ROMAN, United States District Judge
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).)
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
For the following reasons, Defendants' motion is GRANTED
in part and DENIED in part.
following facts are taken from Plaintiffs Complaint and are
accepted as true for purposes of this motion.
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.) 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.)
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.)
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.)
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.)
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."
Standard of Review
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.
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.
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).
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
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).
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).
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)).
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).
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.
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 ...