Opinion
6:16-CV-06596 EAW
2021-12-02
Wamel ALLAH, Plaintiff, v. L. ADAMS, Defendant.
Wamel Allah, Ray Brook, NY, Pro Se. Hillel David Deutsch, NYS Attorney General's Office Department of Law, Rochester, NY, for Defendant.
Wamel Allah, Ray Brook, NY, Pro Se.
Hillel David Deutsch, NYS Attorney General's Office Department of Law, Rochester, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
Pro se plaintiff Wamel Allah ("Plaintiff"), an inmate at Adirondack Correctional Facility, filed this action seeking relief pursuant to 42 U.S.C. § 1983. (Dkt. 1). The Court previously screened Plaintiff's complaint under the 28 U.S.C. §§ 1915(e)(2)(B) and 1915A criteria and concluded that the complaint was subject to dismissal, but granted Plaintiff leave to replead his claims. (Dkt. 13). Plaintiff filed an amended complaint (Dkt. 14), which the Court screened with respect to the §§ 1915(e)(2)(B) and 1915A criteria and permitted Plaintiff's First Amendment retaliation claim as asserted against defendants J. Woodworth, L. Latona, Special Housing Unit Director Prack, and L. Adams to proceed to service (Dkt. 19). Plaintiff alleges that he was retaliated against in violation of the First Amendment because he refused to admit that he was a sex offender during a Sex Offender Counseling and Treatment Program ("SOCTP"), and as a result he was threatened with SHU (special housing unit) and received two false, retaliatory misbehavior reports, for which he received three months of SHU confinement. (Dkt. 14 at 3-4).
On May 18, 2021, the Court granted summary judgment to defendants Woodworth, Latona, and Prack, because Plaintiff had failed to exhaust his administrative remedies. (Dkt. 116 (the "May 18, 2021 Decision and Order")). Presently before the Court is a motion to dismiss filed by defendant L. Adams ("Defendant" or "Adams") (Dkt. 117), as well as Plaintiff's motion to vacate the May 18, 2021 Decision and Order (Dkt. 125). The Court issued scheduling orders on both motions (Dkt. 118; Dkt. 127), and received further submissions from the parties (Dkt. 126; Dkt. 130; Dkt. 131; Dkt. 132; Dkt. 133). For the following reasons, Defendant's motion to dismiss (Dkt. 117) is granted, and Plaintiff's motion to vacate (Dkt. 125) is denied.
Plaintiff has filed a Notice of Interlocutory Appeal of the May 18, 2021 Decision and Order. (Dkt. 120; Dkt. 137). Because "the pendency of an appeal does not divest a district court of jurisdiction over [a] motion for reconsideration," the Court may entertain Plaintiff's motion for reconsideration of the May 18, 2021 Decision and Order. Malcolm v. Honeoye Falls-Lima Cent. Sch. Dist. , 757 F. Supp. 2d 256, 258 (W.D.N.Y. 2010).
BACKGROUND
The following facts are taken from the amended complaint. As required on a motion to dismiss, the Court treats Plaintiff's factual allegations as true.
The alleged retaliation occurred in May 2012, when Plaintiff was participating in SOCTP. (See Dkt. 14 at 3). Plaintiff alleges that in May 2012 he refused to admit that he was a sex offender during SOCTP, and thereafter defendant Woodworth removed him from the group and escorted him to SHU. (Id. ). Plaintiff also received two misbehavior reports, which he alleges were fabricated by defendants Woodworth and Latona, and endorsed by defendant Adams. (Id. ). As a result of the fabricated misbehavior reports, Plaintiff was confined in SHU for three months. (Id. at 4). Defendant Prack reviewed Plaintiff's appeal of the disciplinary hearing and affirmed the decision of the hearing officer. (Id. ).
DISCUSSION
I. Defendant's Motion to Dismiss
A. Legal Standard
"In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint." DiFolco v. MSNBC Cable L.L.C. , 622 F.3d 104, 111 (2d Cir. 2010). A court should consider the motion by "accepting all factual allegations as true and drawing all reasonable inferences in favor of the plaintiff." Trs. of Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt. , 843 F.3d 561, 566 (2d Cir. 2016). To withstand dismissal, a plaintiff must set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Turkmen v. Ashcroft , 589 F.3d 542, 546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (internal quotations and citations omitted). "To state a plausible claim, the complaint's ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.’ " Nielsen v. AECOM Tech. Corp. , 762 F.3d 214, 218 (2d Cir. 2014) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). While the Court is "obliged to construe [pro se ] pleadings liberally, particularly when they allege civil rights violations," McEachin v. McGuinnis , 357 F.3d 197, 200 (2d Cir. 2004), even pleadings submitted pro se must satisfy the plausibility standard set forth in Iqbal and Twombly , see Harris v. Mills , 572 F.3d 66, 72 (2d Cir. 2009) ("Even after Twombly , though, we remain obligated to construe a pro se complaint liberally.").
B. Administrative Exhaustion
Pursuant to the PLRA, "[n]o action shall be brought with respect to prison conditions under section 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).
To satisfy that requirement, prisoners in New York must ordinarily follow a three-step DOCS grievance process. The first step in that process is the filing of a grievance with the Inmate Grievance Resolution Committee. Next, the inmate may appeal an adverse decision to the prison superintendent. Finally, the inmate may appeal the superintendent's decision to the Central Office Review Committee ("CORC"). In general, it is only upon completion of all three levels of review that a prisoner may seek relief in federal court under § 1983.
Crenshaw v. Syed , 686 F. Supp. 2d 234, 236 (W.D.N.Y. 2010) (citations omitted). "Exhaustion is mandatory—unexhausted claims may not be pursued in federal court." Amador v. Andrews , 655 F.3d 89, 96 (2d Cir. 2011) ; see also Ross v. Blake , 578 U.S. 632, 136 S. Ct. 1850, 1857, 195 L.Ed.2d 117 (2016) ("mandatory exhaustion statutes like the PLRA establish mandatory exhaustion regimes, foreclosing judicial discretion."). "[D]efendants bear the burden of proof and prisoner plaintiffs need not plead exhaustion with particularity." McCoy v. Goord , 255 F. Supp. 2d 233, 248 (S.D.N.Y. 2003).
In support of his motion to dismiss, Defendant contends that he did not join in the previously-filed motion for summary judgment filed on behalf of his co-defendants Woodworth, Prack, and Latona, because he was not served with Plaintiff's amended complaint at that time. (Dkt. 117-1 at 1). He cites to the May 18, 2021 Decision and Order, where the Court found that Plaintiff "did not exhaust any grievances in 2012, when the incidents alleged in the amended complaint occurred," and that Plaintiff also failed to provide any cognizable excuse for his failure to exhaust. (Id. at 2-3; see also Dkt. 116). Defendant argues that he is entitled to dismissal based on the Court's determination that Plaintiff failed to exhaust his administrative remedies. (Dkt. 117-1 at 2-3). In response, Plaintiff contends that he was not required to exhaust his administrative remedies because the PLRA applies only to prison conditions and not to individual acts or claims of retaliation (Dkt. 126 at 5), and he also disputes Defendant's arguments pertaining to exhaustion (id. at 8 (disputing that Defendant is entitled to dismissal because the law does not require him to exhaust his administrative remedies via the grievance process)).
Although the summons for defendant Adams was returned unexecuted (see Dkt. 119), on May 20, 2021, his attorney filed the instant motion to dismiss on his behalf (Dkt. 117).
In the May 18, 2021 Decision and Order, the Court cited to evidence submitted by defendants Woodworth, Latona, and Prack in support of their motion for summary judgment, including a two-page Department of Corrections and Community Supervision ("DOCCS") document titled "Inmate Grievance, Closed Cases" for Plaintiff, which listed his exhausted grievance history. (Dkt. 116 at 6; see also Dkt. 101-3 at 5-6). As explained in the May 18, 2021 Decision and Order, while the grievance report revealed that Plaintiff filed grievances in 1988, 1989, 1994, 1995, 1996, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2009, 2014, and 2016, he did not exhaust any grievances in 2012, when the incidents alleged in the amended complaint occurred. (Dkt. 116 at 6-7). Because Plaintiff did not dispute these facts and offered no valid excuse for his failure to exhaust his claims, the Court granted summary judgment to defendants Woodworth, Latona, and Prack. (Id. at 11-12).
The Court is cognizant that "[m]ost circuits that have considered the issue, ... including this circuit, have held that nonexhaustion is an affirmative defense, and that therefore defendants bear the burden of proof and prisoner plaintiffs need not plead exhaustion with particularity." McCoy, 255 F. Supp. 2d at 248. Accordingly, "[t]he only circumstance in which it is appropriate to dismiss a complaint on nonexhaustion grounds is when it is apparent from the face of the complaint that the plaintiff failed to exhaust his administrative remedies." Randle v. Alexander, 960 F. Supp. 2d 457, 483 (S.D.N.Y. 2013). However, the Court has already decided, in connection with the May 18, 2021 Decision and Order, that Plaintiff failed to exhaust his administrative remedies because he filed no grievances in 2012, when the incidents alleged in the amended complaint occurred (see Dkt. 116 at 6-7), and that determination is law of the case. Under the law of the case doctrine, " ‘when a court has ruled on an issue, that decision should generally be adhered to by that court in subsequent stages of the same case’ unless ‘cogent and compelling reasons militate otherwise.’ " In re LIBOR-Based Fin. Instruments Antitrust Litig. , 27 F. Supp. 3d 447, 473 (S.D.N.Y. 2014) (quoting Johnson v. Holder, 564 F.3d 95, 99 (2d Cir. 2009) ); see also Musacchio v. United States , 577 U.S. 237, 244-45, 136 S.Ct. 709, 193 L.Ed.2d 639 (2016) ("The law-of-the-case doctrine generally provides that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." (quotations and citations omitted)). See, e.g., Lopez v. Goodman , No. 14-CV-6518 CJS, 2019 WL 315324, at *2, 4-5 (W.D.N.Y. Jan. 24, 2019) (dismissing amended complaint based on the plaintiff's failure to exhaust, where the defendants argued that it was "law-of-the-case that the relevant administrative remedy, i.e., the Inmate Grievance Program, was ‘available’ to Plaintiff, and that it is undisputed that when Plaintiff finally filed a grievance several years after the fact, CORC found that the grievance was procedurally barred as untimely"); see also MB by RRB v. Islip Sch. Dist. , No. 14-cv-4670 (SJF)(GRB), 2017 WL 1325367, at *7 (E.D.N.Y. Mar. 31, 2017) (law of the case applied to court's prior determination that plaintiffs were required to exhaust their administrative remedies).
As a result, unless Plaintiff's motion to vacate is successful, he is barred from pursuing his claims against Adams for the same reasons set forth in the May 18, 2021 Decision and Order. Therefore, the Court will turn to Plaintiff's motion to vacate.
II. Plaintiff's Motion to Vacate
On June 17, 2021, Plaintiff filed a "motion to vacate" the May 18, 2021 Decision and Order, pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, which governs motions to alter or amend a judgment. (Dkt. 125; Dkt. 131). Plaintiff contends that the May 18, 2021 Decision and Order violates controlling authority in the Second Circuit. (Dkt. 125 at 3). Given Plaintiff's pro se status, the Court construes his motion as one for reconsideration.
"The standard for granting ... a motion [for reconsideration] is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked—matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc. , 70 F.3d 255, 257 (2d Cir. 1995). Common grounds for reconsideration include "an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd. , 956 F.2d 1245, 1255 (2d Cir. 1992) (citation omitted). "These criteria are strictly construed against the moving party so as to avoid repetitive arguments on issues that have been considered fully by the court." Boyde v. Osborne , No. 10-CV-6651, 2013 WL 6662862, at *1 (W.D.N.Y. Dec. 17, 2013) (quoting Griffin Indus., Inc. v. Petrojam, Ltd. , 72 F. Supp. 2d 365, 368 (S.D.N.Y. 1999) ). The decision to grant or deny a motion for reconsideration is within "the sound discretion of the district court...." Aczel v. Labonia , 584 F.3d 52, 61 (2d Cir. 2009) (citation omitted).
The Court has before it evidence submitted by defense counsel in connection with the prior motion for summary judgment demonstrating that Plaintiff failed to exhaust any grievances in 2012. Plaintiff has had several opportunities to respond to the exhaustion argument, and in doing so has consistently failed to dispute that he failed to exhaust his claims, instead arguing that he was not required to do so. (See Dkt. 113 at 2 (not disputing failure to exhaust argument, but rather arguing that "a Tier ‘3’ Disciplinary proceeding can never be grievable," citing to DOCCS Directive #4040, § 701.3(e)); Dkt. 126 at 5 ("Plaintiff was not required to exhaust[ ] administrative remedies because the PLRA only applies to prison conditions and not to individual claims of retaliation")). Although with the present motion, Plaintiff argues that he "hereby now dispute[s]" the argument that Defendant is entitled to judgment in his favor because he failed to exhaust his claims (see id. at 8 (citing to his argument that he was not required to exhaust his administrative remedies via the grievance process)), Plaintiff has not, at any point, disputed the fact that he failed to exhaust his claims, see, e.g., Tolliver v. N.Y.S. Dep't of Corr. Svcs. , No. 08 Civ. 4561(DC), 2009 WL 618371, at *4 (S.D.N.Y. Mar. 12, 2009) (on motion to dismiss, finding that the plaintiff failed to exhaust his administrative remedies, noting that the plaintiff did not dispute that he failed to exhaust his administrative remedies, but rather argued that his complaint was not subject to exhaustion because it did not involve "prison conditions"); see also Gottesfeld v. Anderson , No. 18 Civ. 10836 (PGG), 2020 WL 1082590, at *7 (S.D.N.Y. Mar. 6, 2020) (discovery not necessary on the plaintiff's efforts to exhaust, as those facts were not in dispute).
In support of his argument that he was not required to exhaust his retaliation claims, Plaintiff cites to Lawrence v. Goord , 238 F.3d 182, 185-86 (2d Cir. 2001), where the court held that an inmate is not required to exhaust administrative remedies before bringing an action for individualized instances of retaliation. (See Dkt. 126 at 6). However, Lawrence was vacated by the United States Supreme Court and remanded for further consideration in light of Porter v. Nussle , 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Goord v. Lawrence , 535 U.S. 901, 122 S.Ct. 1200, 152 L.Ed.2d 139 (2002). On remand, the Second Circuit held that the plaintiff was required to exhaust his retaliation claim. Lawrence v. Goord , 304 F.3d 198, 200 (2d Cir. 2002) ("Taking Nussle as our guide, we now determine that Lawrence's retaliation claim fits within the category of ‘inmate suits about prison life,’ and therefore must be preceded by the exhaustion of state administrative remedies available to him.").
Plaintiff also cites Giano v. Goord , 380 F.3d 670 (2d Cir. 2004), Hemphill v. New York , 380 F.3d 680 (2d Cir. 2004), and Larkins v. Selsky , No. 04Civ.5900RMB(DF), 2006 WL 3548959 (S.D.N.Y. Dec. 6, 2006). (Dkt. 125 at 1, 6-7). However, all of these decisions were issued prior to Ross v. Blake , 578 U.S. 632, 136 S.Ct. 1850, 195 L.Ed.2d 117 (2016), where the Court held that an inmate's failure to exhaust administrative remedies prior to bringing suit under the PLRA may not be excused, even to take "special" circumstances into account, and thus the cases relied on by Plaintiff do not represent the current state of the law with respect to exhaustion. See, e.g., Williams v. Correction Officer Priatno , 829 F.3d 118, 123 (2d Cir. 2016) ("[T]o the extent that our special circumstances exception established in Giano ... and Hemphill ... permits plaintiffs to file a lawsuit in federal court without first exhausting administrative remedies that were, in fact , available to them, those aspects of Giano and Hemphill are abrogated by Ross . Indeed, Ross largely supplants our Hemphill inquiry by framing the exception issue entirely within the context of whether administrative remedies were actually available to the aggrieved inmate.").
In other words, none of the cases Plaintiff cites constitute controlling law the Court overlooked in the May 18, 2021 Decision and Order. Moreover, Plaintiff has cited to no evidence that would alter the Court's prior determination that he failed to exhaust his administrative remedies with respect to the alleged incidents in the amended complaint. Again, Plaintiff does not dispute that he did not exhaust his remedies nor does he contend that he was unable to do so. Rather, as discussed in the May 18, 2021 Decision and Order, Plaintiff contends that he was not required to exhaust his administrative remedies, but the Court rejected that argument for the reasons previously articulated. Accordingly, Plaintiff has failed to meet the strict standard warranting reconsideration of the May 18, 2021 Decision and Order, and therefore his motion to vacate (Dkt. 125) is denied, and accordingly, the motion to dismiss filed by defendant Adams (Dkt. 117) must be granted because the fact that Plaintiff's claims are barred for failure to exhaust is the law of the case.
Generally, a dismissal for failure to exhaust under the PLRA is dismissed without prejudice, particularly when the dismissal is based on a curable, procedural flaw. However, because Plaintiff has since been transferred from the Gowanda Correctional Facility where he alleges the "acts of retaliation occurred" (see Dkt. 14 at 3), and he can no longer cure his defect, the Court dismisses Plaintiff's claim with prejudice. See Hernandez v. Doe 1-7 , 416 F. Supp. 3d 163, 166 (E.D.N.Y. 2018) ("Where an inmate can no longer exhaust administrative remedies because he has been transferred, however, and had ample opportunity to exhaust prior to being transferred, but failed to do so, dismissal with prejudice is proper.").
CONCLUSION
For the foregoing reasons, Defendant's motion to dismiss (Dkt. 117) is granted, and Plaintiff's motion to vacate (Dkt. 125) is denied. Plaintiff's claims against defendant Adams are dismissed, and the Clerk of Court is directed to enter judgment in his favor and to close this case.
SO ORDERED.