Opinion
Nos. 00 Civ. 2834 (RMB) (JCF), 00 Civ. 3726 (RMB) (JCF)
June 11, 2002
REPORT AND RECOMMENDATION
Joseph Berry, a prison inmate, brings these actions pro se pursuant to 42 U.S.C. § 1983. Mr. Berry's first action, filed under docket number 00 Civ. 2834 ("2834"), alleges that New York City, and the named officials, corrections officers, and staff violated his civil rights by denying him a special liquid diet and adequate dental and medical care. Mr. Berry's second action, filed under docket number 00 Civ. 3726 ("3726"), alleges that some of the same defendants and some additional persons violated his civil rights by: (1) denying him adequate heat and hot water; and (2) retaliating against him for complaining about these conditions. As these cases are related, both will be addressed here.
Mr. Berry has moved pursuant to Rule 15 of the Federal Rules of Civil Procedure to file a third amended complaint in 2834 and second and third amended complaints in 3726. The defendants have filed several cross-motions. Three defendants, Dr. Harry Shuman, Dr. Ronald Gade, and Dr. R. Margolin (the "St. Barnabas defendants"), move to dismiss the claims in 2834 pursuant to Rule 12(b) of the Federal Rules of Civil Procedure for failure to state a cause of action, failure to exhaust administrative remedies, and failure to overcome qualified immunity. Eighteen defendants, including the City of New York, Bernard Kerik, Kathleen Raymond, Captain Santiago, Captain Bullaro, C.O. Aquino, Marlene Richards, E. Brown, G. Franchesi, Dr. Evelyn Jeanniton, Ernesto Marrero, Jr., Dr. Patrick Brown, George Axelrod, Joseph R. Erazo, Mark Farsi, C.O. Watson, C.O. Kelly, and Captain Irene Fox (the "City defendants"), have submitted a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure in both 2834 and 3726. They argue that the plaintiff's claims should be dismissed for failure to: (1) exhaust available remedies; (2) sufficiently plead direct involvement by the defendants; (3) state a cause of action; (4) overcome qualified immunity; and (5) sufficiently plead a Monell claim.
The remaining defendants have either not been identified or have not been properly served in this action. (Memorandum of Law in Support of Defendants' Motion to Dismiss the Complaint ("City Def. Memo.") at 1 n. 1) These defendants should therefore be dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
The plaintiff has also moved for a stay to permit him to exhaust his claims. And finally, the plaintiff has moved for a default judgment against the City defendants for failing to submit their answers in a timely manner and against all the defendants for failing to comply with discovery demands.
For the following reasons, the motion of the St. Barnabas defendants and the City defendants should be granted and the plaintiff's motions to amend, for a stay, and for default judgment should be denied.
Background for 2834
Mr. Berry commenced this action on or about April 13, 2000, alleging cruel and unusual punishment and denial of due process in violation of 42 U.S.C. § 1983. Specifically, Mr. Berry alleges that while he was incarcerated at Riker's Island, North Facility, he underwent a tooth extraction that resulted in pain and discomfort. Medical personnel referred him to a dietician and he was placed on a "full liquid" diet on or about July 16, 1998. (Second Amended Complaint ("2834 Second Am. Compl."), ¶¶ 7-8). The plaintiff claims that although he repeatedly requested this prescribed diet, it was denied him for over two months. According to Mr. Berry, Captain Bullaro refused to give him the special diet on two specific occasions. (2834 Second Am. Compl., ¶¶ 9, 12-13).
Finally on September 29, 1998, the plaintiff began receiving the liquid diet. (2834 Second Am. Compl., ¶ 9). Mr. Berry contends that now when he gets hungry, he experiences flashbacks of this incident, "further extreme emotional harm and depression," and "excessive eating and weight gain." (2834 Second Am. Compl., ¶¶ 9-10).
Mr. Berry next maintains that during his time at Riker's Island he was repeatedly denied adequate dental care. Specifically, he asserts that on or about March 14, 1998, he informed his medical doctor that he had "loose fillings." (2834 Second Am. Compl., ¶ 16). He was referred to a dentist for examination and treatment but did not receive an initial appointment until May 5, 1998. He claims that by this time his tooth was infected, had decayed, and had "split in half while eating." (2834 Second Am. Compl., ¶ 16).
The plaintiff also asserts that on June 29, 1998, Dr. Sandra S. McEachrane extracted the decaying tooth but failed to take x-rays to ensure that "all of the tooth . . . was removed." (2834 Second Am. Compl. ¶ 17). The plaintiff allegedly developed painful complications from the extraction and was placed on the liquid diet referred to earlier. Mr. Berry further contends that several medical doctors referred him back to Dr. McEachrane but she refused to see him before his next regularly scheduled appointment on August 4, 1998, thus causing him unnecessary pain and suffering. (2834 Second Am. Compl., ¶¶ 17-18).
Mr. Berry then claims that he was referred to an oral surgeon, John Doe #3, who gave him two injections and stated he found nothing wrong with the plaintiff's right jaw. (2834 Second Am. Compl., ¶ 20). While giving him the injection, the plaintiff contends that the oral surgeon intentionally lanced an abscessed tooth which allowed "`toxic poison' to drain into and contaminate [his] system." (2834 Second Am. Compl., ¶ 21). Soon after the injections, the plaintiff became extremely sick and informed a correction officer that he needed treatment. She contacted the medical clinic for him but was told that his request was denied because the plaintiff was not "bleeding or unconscious." (2834 Second Am. Compl., ¶ 22). The plaintiff argues that the clinic policy of not allowing access to the clinic after hours or on weekends for prisoners unless they are bleeding or unconscious aggravated his and other prisoners' medical conditions. (2834 Second Am. Compl., ¶ 23).
Next, the plaintiff alleges that on January 12, 1998, he was examined by a second oral surgeon, John Doe #4. "Despite the information in [his] medical records, the obvious tooth decay, and [the] loud `clicking' sound in [his] right side jaw area," the surgeon made no entry in his records. This, according to the plaintiff, caused him further pain and suffering. (2834 Second Am. Compl., ¶ 25).
The plaintiff then asserts that on October 8, 1998, he was treated by Dr. R. Margolin, the Chief of Dentistry at Riker's Island. (2834 Second Am. Compl., ¶¶ 28-29). The dentist did a root canal in a tooth despite the fact that it was "loose and shaking." The same tooth had to be removed a year later. (2834 Second Am. Compl., ¶¶ 29, 31). Dr. Margolin treated the plaintiff again on December 10, 1998. Mr. Berry contends that the day before this appointment, he had been diagnosed with type 2 diabetes and that he informed Dr. Margolin of the diagnosis. He argues that the dentist should have been aware of the risk involved in treating someone with high blood sugar and should have refrained from treating him. He allegedly became sick after the treatment. (2834 Second Am. Compl., ¶¶ 32-33).
Mr. Berry had a follow up visit with Dr. Margolin on January 14, 1999. (2834 Second Am. Compl., ¶ 35). The doctor purportedly ignored Mr. Berry's medical records and filled a tooth which had a "split nerve." (2834 Second Am. Compl., ¶¶ 34, 36). This caused the plaintiff considerable pain and he eventually had the tooth extracted. According to the plaintiff, Dr. Margolin's "method of dental care served no useful purpose other than the unnecessary and wanton infliction of further pain, suffering, emotional harm, depression, discomfort and permanent tooth loss." (2834 Second Am. Compl., ¶¶ 36-37).
And finally, the plaintiff alleges that the staff at Riker's Island failed to properly treat his diabetes and maintain his general health status. He alleges that when he arrived at the facility, he was "well developed and well nourished." Nine months later, he was diagnosed as obese and as having developed a "`new' onset of type 2 sugar diabetes." (2834 Second Am. Compl., ¶ 38). He faults Marlene Richards, the dietician at Riker's Island, for failing to follow a "nutritional care plan" and for failing to meet with him regularly. (2834 Second Am. Compl., ¶ 38). He faults Jane Doe #1 for referring him to an eye doctor instead of treating his "serious fast degenerating and life threatening medical problem." (2834 Second Am. Compl., ¶ 39). He faults John Doe #5 for faulty lab work and record keeping. (2834 Second Am. Compl., ¶ 40). And he faults correctional personnel for interfering with his treatment and failing to take him to the medical clinic in a timely fashion. (2834 Second Am. Compl., ¶ 42). Mr. Berry seeks $50,000,000 in compensatory damages as well as declaratory relief. (2834 Second Am. Compl., Section V, ¶ 2).
The plaintiff acknowledges that there is a grievance procedure at Riker's Island but admits that he did not use it for the following reasons: (1) he is no longer in custody there; (2) very few issues were resolved internally at the North Facility; (3) the inmate grievance boxes were full of unanswered grievances; (4) there was very limited access to the inmate grievance office; and (5) correctional personnel were reluctant to assist the plaintiff in filing his grievance. (2834 Second Am. Compl., Section 11(D) ¶ 4).
In his proposed Third Amended Complaint, the plaintiff seeks to certify a plaintiff class and to add several defendants. He also lists additional reasons for failing to exhaust his claims while at Riker's Island: (1) he was told at orientation that "a grievance cannot be brought against Officers or Staff;" (2) his claims were under investigation by the Inspector General's office; (3) he feared retaliation; and (4) he could not have anticipated the recent decision by the Supreme Court in Booth v. Churner. (Third Amended Complaint ("2834 Third Am. Compl."), ¶ 28). He increased the damage award sought to $100,000,000 and deleted his request for declaratory relief. (2834 Third Am. Compl., ¶ 59).
Background for 3726
Mr. Berry commenced this action on or about May 17, 2000, alleging inadequate heat and hot water during his stay at Riker's Island and retaliation for complaining about it. Specifically, the plaintiff alleges that from October 15, 1998 through January 3, 1999, correctional personnel failed to control the temperature properly so that there was little heat and no hot water where the plaintiff was housed. (Amended Complaint ("3726 Am. Compl."), ¶¶ 3-4). On October 22, 1998, Deputy Warden of Security Mark Farsi was asked by the inmates for more blankets and he replied they were "running low on blankets" and "didn't have any to give [them]." (3726 Am. Compl., ¶ 9). The inmates were also told by personnel that they were not allowed to put plastic on the windows for security reasons. (3726 Am. Compl., ¶ 10). On October 24, 1998, the plaintiff drafted a "Summons and Civil Rights Complaint," which complained of the low temperatures. It was sent to the warden with fifty inmates' signatures on it. (3726 Am. Compl., ¶ 12 Exh. A-1-3).
According to the plaintiff, soon after the petition was mailed, "all `HELL' broke lose." Captain Scott met with the inmates and told the dorm representative,
You people want notoriety do you? We're going to give it to you. From now on when you shop it will be after everybody else has shopped and the shelves are empty. Your mail will be returned to sender, your visit[or]s will be told you are no longer in the system, numerous shakedowns, and so on.
(3726 Am. Compl., ¶ 13). According to Mr. Berry, the threats were carried out and their "lives were a living `NITEMARE' [sic]." (3726 Am. Compl., ¶ 13). Mr. Berry alleges that on or about December 31, 1998, he called to complain to the Inspector General about the lack of heat. Approximately one-half hour after the call, a captain came into the dorm 2 upper and checked the temperature which was "in the mid to low 40's." At that point the captain gave them each an extra blanket. (3726 Am. Compl., ¶ 15). Then, on January 3, 1999, maintenance workers were brought in and worked on the heating units, put duct tape on the windows, and closed windows that were "inoperative." (3726 Am. Compl., ¶ 16). Mr. Berry contends that the frigid temperatures caused his arthritis, which had been dormant, to become active. (3726 Am. Compl., ¶ 23).
Finally, the plaintiff claims that correctional personnel retaliated against him for complaining about the lack of heat and hot water. (3726 Am. Compl., ¶ 20). Mr. Berry provides no additional facts as to this claim. He seeks $5,000,000 in compensatory damages and $5,000,000 in punitive damages. (3726 Am. Compl., Section V).
The plaintiff again acknowledges that there is a grievance program at Riker's Island but states that he opted not to use it for the same reasons listed in 2834: (1) the incident occurred at Riker's Island and he had since been transferred; (2) very few issues were resolved internally at the North Facility; (3) the inmate grievance boxes were full of unanswered grievances; (4) there is very limited access to the inmate grievance office; and (5) correctional personnel were reluctant to assist the plaintiff in filing his grievance. (3726 Am. Compl., Section 11(D) ¶ 7).
In his proposed Second Amended Complaint in 3726, the plaintiff seeks to add an additional sixty-two defendants to the case. (Second Amended Complaint ("3726 Second Am. Compl."), ¶¶ 11-12). In his proposed Third Amended Complaint, the plaintiff seeks certification of a plaintiff class. (Third Amended Complaint ("3726 Third Am. Compl.," ¶ 1). He also adds the same four reasons for failing to exhaust his claims as he added in 2834. (3726 Third Am. Compl., ¶ 23).
Discussion
A. Standard for Dismissal
In considering a motion to dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, the court must accept as true all factual allegations in the complaint and must draw all inferences in favor of the plaintiff. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993); York v. Association of the Bar of the City of New York, 286 F.3d 122, 125 (2d Cir. 2002); Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). Accordingly, the complaint may not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted). These principles are even more strictly applied where the plaintiff alleges civil rights violations, Hernandez, 18 F.3d at 136; Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991), or where he is proceeding pro se. Haines v. Kerner, 404 U.S. 519, 520 (1972); McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999).
The standard for evaluating a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure is the same as that used in evaluating a motion to dismiss under 12(b)(6). Irish Lesbian and Gay Organization v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998); Encarnacion ex rel. George v. Barnhart, 191 F. Supp.2d 463, 469 (S.D.N.Y. 2002). The court therefore must accept the allegations of the plaintiff's complaint as true, and draw all reasonable inferences in the plaintiff's favor. Irish Lesbian and Gay Organization, 143 F.3d at 644.
B. Exhaustion of Administrative Remedies
The defendants argue that the plaintiff's claims in both cases should be dismissed in their entirety because he has failed to exhaust his administrative remedies. Under the Prisoner Litigation Reform Act (the "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). "Only upon a final determination is an inmate deemed to have exhausted his administrative remedies." Parkinson v. Goord, 116 F. Supp.2d 390, 394 (W.D.N.Y. 2000) (citation omitted). As the Supreme Court recently made clear, the PLRA "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes." Porter v. Nussle, 534 U.S. 516, ___, 122 5. Ct. 983, 992 (2002) (citation omitted).
Riker's Island, like all New York correctional facilities, maintains an inmate grievance program. (Directive #3375R, entitled "Inmate Grievance Resolution Program" ("Directive 3375R"), attached as Exh. 7 to Affirmation of Andrew Zwerling dated Dec. 18, 2001 ("Zwerling Aff.")). The grievance program has five levels of review. The process begins with a filing of a grievance with the Inmate Grievance Resolution Committee ("IGRC"). If the grievance is not informally resolved, the inmate may request a formal hearing before the IGRC. After the IGRC issues a recommendation, that decision may be appealed to the warden. If the inmate is still unsatisfied, the warden's decision may be appealed to the Central Office Review Committee. And finally, the Central Office Review Committee's decision can be appealed to the Board of Correction. (Directive # 3375R at 7-8).
Here, Mr. Berry concedes in both cases that he failed to utilize the grievance program at Riker's Island. (2834 Second Am. Compl., Section 11(B); 3726 Am. Compl., Section 11(B)). In 2834, the plaintiff did take the first step in filing a grievance on two separate occasions. On June 18, 1998, the plaintiff filled out an Inmate Grievance Form stating that he had a problem with his jaw and that he had been sent back and forth between the medical and the dental clinics. According to the form, the IGRC concluded that the plaintiff's problem was a dental one and made an appointment for him with the dental clinic. This informal resolution was accepted by the plaintiff, as indicated by his signature on the form. (2834 Second Am. Compl., Exh. H-13). Mr. Berry filled out a second grievance form on September 18, 1998, in which he accused the dental clinic of malpractice and negligence. He complained that the dental clinic staff concluded nothing was wrong with him when several medical doctors had insisted otherwise. He requested that he be allowed access to a "neutral dental clinic for diagnosis and x-rays." (2834 Second Am. Compl., Exh. H-25). There is no evidence that the plaintiff pursued this grievance further within the institution and, in fact, Mr. Berry acknowledges in 2834 that he failed to use the grievance process. (2834 Second Am. Compl., Section II (B))
In 3726, the plaintiff acknowledges that he "opted not to use the Inmate Grievance office" at all. (3726 Am. Compl., ¶ 7). In both cases, Mr. Berry argues that his failure to exhaust should be excused due to a number of special circumstances. Each of these will be addressed below.
1. Transfer to Another Facility
The plaintiff first contends that he did not exhaust his administrative remedies because the alleged violation occurred on Riker's Island and he was moved to another facility. Nevertheless, Mr. Berry's transfer from Riker's Island to a state correctional facility in November 2000 does not excuse his failure to exhaust.
Although a transfer to a different facility can excuse failure to comply with the PLRA's exhaustion requirement, see Santiago v. Meinsen, 89 F. Supp.2d 435, 441 (S.D.N.Y. 2000), where the plaintiff is "not transferred until after a grievance could have been filed and processed, then his claim must be dismissed for failure to exhaust administrative remedies." Muller v. Stinson, No. 99-CV-0624, 2000 WL 1466095, at *2 (N.D.N.Y. Sept. 25, 2000); see also Polanco v. City of New York Department of Corrections, No. 01 Civ. 759, 2002 WL 272401, at *3 (S.D.N.Y. Feb. 26, 2002) (where plaintiff had administrative remedies available to him before he was transferred, action must be dismissed for failure to exhaust); Burns v. Moore, No. 99 Civ. 0966, 2002 WL 91607, at *6 (S.D.N.Y. Jan. 24, 2002) (where plaintiff had two months after alleged civil rights violations but before transfer from city to state facility, transfer is no excuse for having failed to exhaust remedies)
In this case, Mr. Berry had ample time to pursue his administrative remedies while at Riker's Island. According to the plaintiff's submissions, he was initially brought to Riker's Island in March 1998. (2834 Third Am. Compl., ¶ 4). He was released on January 29, 1999, but was then remanded back into the custody of the New York City Department of Correction (the "DOC") on August 15, 2000, and housed at the Queens Detention Complex. "[W]ithin days," the plaintiff was moved back to Riker's Island where he stayed until November 29, 2000, when he was transferred to a state facility. (2834 Second Am. Compl., ¶¶ 3, 26, 42, 45, 48).
Mr. Berry's claim of inadequate dental care began on March 14, 1998 and continued until he was released on January 29, 1999. Mr. Berry, therefore, had ten months to pursue administrative remedies on this claim from the date the alleged violation began and before he was released from Riker's Island. He had another three months to pursue a grievance from the time he was remanded back into the custody of the DOC on August 15, 2000, until he was transferred to a state facility on November 29, 2000.
His claim that he was denied a prescribed medical diet began on July 16, 1998 and lasted until September 29, 1998. For this claim, the plaintiff had six months to file a grievance from the time the incident began to when he was initially released from Riker's Island. Again, he had another three months after he was remanded back into the DOC's custody.
Mr. Berry's claim that he was deprived of heat and water began on October 15, 1998 and lasted until January 3, 1999. (3726 Am. Compl., ¶ 3). He had three months from the beginning of this alleged violation and before his release to file a complaint. He had another three months after he was remanded to the DOC. Given that the plaintiff was not transferred to the state correctional facility until November 29, 2000, this cannot possibly justify his failure to exhaust. Accordingly, this argument must fail.
2. Futility
Mr. Berry's next four reasons for failing to exhaust — that few issues were resolved at the facility, that the grievance boxes were full, that there was limited access to the inmate office, and that the officers were reluctant to assist him — can be addressed together. (2834 Second Am. Compl., ¶ 4; 3726 Am. Comp., ¶ 7).
It is well established that the PLRA's exhaustion requirement cannot be waived based upon the plaintiff's belief that pursuing administrative remedies would be ineffective or futile. See Giano v. Goord, 250 F.3d 146, 150-151 (2d Cir. 2001) ("[T]he alleged ineffectiveness of the administrative remedies that are available does not absolve a prisoner of his obligation to exhaust such remedies when Congress has specifically mandated that he do so."); Nussle v. Willette, 224 F.3d 95, 99 (2d Cir. 2000) (PLRA does not make "effectiveness" of administrative remedies a precondition to exhaustion requirement), rev'd on other grounds sub nom. Porter v. Nussle, 534 U.S. 516 (2002); Nunez v. Goord, 172 F. Supp.2d 417, 428 (S.D.N.Y. 2001) (court refused to excuse exhaustion requirement where plaintiff claimed filing grievance was futile because officers intercepted and destroyed grievance forms, grievance clerk was inaccessible, and numerous grievances were lost by grievance office).
Furthermore, although Mr. Berry complains of inaccessibility, he managed to file at least two grievances in 1998 with the Inmate Grievance Resolution Committee, one of which resulted in resolution. Under the circumstances, he can hardly suggest that resort to administrative remedies would have been futile.
3. Estoppel
In his proposed Third Amended Complaints in both cases, Mr. Berry argues for the first time that he was told at orientation that "a grievance cannot be brought against Officers or Staff." (2834 Third Am. Compl., ¶ 28; 3726 Third Am. Compl., ¶ 23). He contends that the defendants should therefore be estopped from asserting that his claim be dismissed on exhaustion grounds.
The plaintiff is correct that "in some cases, a defendant may be estopped from asserting the failure to exhaust administrative remedies as an affirmative defense, where it leads an inmate to believe that the filing of a grievance is impossible or futile." Burns, 2002 WL 91607, at *5 (citing Davis v. Frasier, No. 98 Civ. 2658, 1999 WL 395414, at *4 (S.D.N.Y. June 15, 1999)); see also International Minerals and Resources, S.A. v. Pappas, 96 F.3d 586, 594 (2d Cir. 1996) (estopppel defense may lie where the party asserting the defense did not know the true facts and relied to his detriment upon the defendant's representations).
Although the Court must credit the plaintiff's assertion that the statement was made, as is required on a motion to dismiss, the fact that the plaintiff actually did file several grievances and was successful in at least one case belies the notion that this statement led him "to believe that the filing of a grievance [was] impossible or futile." Burns, 2002 WL 91607, at *5; cf. O'Connor v. Featherston, No. 01 Civ. 3251, 2002 WL 818085, at *3 (S.D.N.Y. April 29, 2002) (exhaustion requirement excused where plaintiff made several inquiries to various divisions within Department of Corrections, made FOIA request, appealed the denial of that request, and was led to believe his claims were being investigated); Feliciano v. Goord, No. 97 Civ. 263, 1998 WL 436358, *2 (S.D.N.Y. July 27, 1998) (failure to exhaust excused where plaintiff was told by prison officials that issue was not "grievance matter," officials refused to provide him with grievance forms, assured him that the incidents would be investigated by staff as a prerequisite to filing a grievance, and provided prisoner with no information about results of investigation). Therefore, this argument must fail.
4. Non-Grievable Issue
The plaintiff next alleges for the first time in his proposed Third Amended Complaints that he did not use the jail grievance procedure because the matter was "under investigation by the Inspector General and is therefore a `non-grievable issue.'" (2834 Third Am. Compl., ¶ 28; 3726 Third Am. Compl., ¶ 23).
An issue under investigation by the Inspector General is no longer grievable according to the City's grievance policy. (Directive 3375R at 2). ("Among the issues that are non-grievable are: matters under investigation by the Inspector General."). Here, the plaintiff alleges that the claims raised in 2834 were under investigation due to a complaint he filed with the Inspector General on December 4, 1998, and refers to an exhibit attached to his Complaint titled, "Health and Hospitals Corporation Correctional Health Services: Complaint Investigation Form." However, the only problem alleged by the plaintiff in that form is that "he feels sick and may be diabetic." (2834 Second Am. Compl., ¶ 41 Exh. 114). Since the issues raised on that complaint form are not the same as those raised in this case, this proffered reason does not excuse his failure to exhaust his claims in 2834. Cf. Davis, 1999 WL 395414, at *3 (issue may be non-grievable where plaintiff submitted record from Inspector General's office that documented same issues plaintiff raised in federal lawsuit) Moreover, the complaint form that Mr. Berry attaches states that "all his problems has [sic] been addressed properly," thus indicating that that particular matter was no longer under investigation in any event. (2834 Second Am. Compl., Exh. 114) See Northern Indiana Gun Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 454 (7th Cir. 1998) ("when a written instrument contradicts allegations in the complaint to which it is attached, the exhibit trumps the allegations"); Gant v. Wallingford Board of Education, 69 F.3d 669, 674 (2d Cir. 1995) (on motion to dismiss, "[i]f the appended document . . . reveals facts which foreclose recovery as a matter of law, dismissal is appropriate"); ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 n. 8 (3d Cir. 1994) (same).
Similarly, in 3726 the plaintiff refers to phone calls and "numerous `VALID' Prisioners [sic] Rights and Federal Civil Rights complaints" on file at the Inspector General's office (3726 Am. Compl., ¶¶ 11, 14, 15), but fails to specify what issues were raised, and most importantly fails to state affirmatively that the Inspector General actually began an investigation. Since nothing in the City's grievance policy permits telephone or written complaints directed to the Inspector General's office to substitute for filing an inmate grievance form through the proper channels, this excuse also fails in 3726. Gebhardt v. Allspect, Inc., 96 F. Supp.2d 331, 333 (S.D.N.Y. 2000) ("conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss"); see also Bnitez v. Straley, No. 01 Civ. 0181, 2002 WL 485692, at *2 (S.D.N.Y. March 27, 2002).
5. Fear of Retaliation
Mr. Berry next alleges for the first time in his proposed Third Amended Complaints that he did not exhaust his administrative remedies out of fear of retaliation by DOC personnel. (2834 Third Am. Compl., ¶ 28; 3726 Third Am. Compl., ¶ 23). The only specific act of retaliation alleged by Mr. Berry is set forth in 3726 when Captain Scott threatened the dorm representative with a withdrawal of personal privileges for sending a petition to the warden regarding the heat and water. This event occurred sometime after October 24, 1998, according to the plaintiff. (3726 Am. Compl., ¶ 13).
This event does not excuse the plaintiff's failure to grieve his claims alleged in 2834 for several reasons. First, the confrontation occurred three months after he was denied a liquid diet and seven months after his dental problems began. Not only did the plaintiff have adequate time to submit a grievance before the allegedly retaliatory incident with Captain Scott, but in 2834 Mr. Berry did file several grievances before the incident occurred. Furthermore, the plaintiff continued to complain about the prison conditions adversely affecting his health to various entities after October 1998, including a complaint filed with the Health and Hospitals Corporation Correctional Health Services on December 31, 1998 and a letter sent to the Legal Aid Society sometime after August 2000. (2834 Second Am. Compl., Exh. 114 H-16). He also attaches documents indicating that he and other inmates complained of inadequate medical care at jail administration meetings held in November and December of 1998 (2834 Third Am. Compl., C-1-4), just months after the incident with Captain Scott took place.
Similarly, the plaintiff's claim that he did not submit a grievance regarding the heat and water out of fear of retaliation is undermined by the fact that he filed a complaint with the New York City Board of Correction on December 23, 1998, two months after the alleged retaliatory incident with Captain Scott. The complaint mentioned the lack of heat in dorm 2 upper. (3726 Third Am. Compl., Exh. A-5).
Given the number of complaints the plaintiff made to various authorities in both cases after the incident with Captain Scott occurred, he can hardly claim in this instance that his failure to pursue the formal grievance process required by the City policy was due to a fear of retaliation. Therefore, any claim that he failed to exhaust out of fear must fail. See Laureano v. Pataki, No. 99 Civ. 10667, 2000 WL 1458807, at *3 (S.D.N.Y. Sept. 29, 2000) (motion to dismiss granted where court rejected plaintiff's claim that he did not exhaust administrative remedies because he feared repercussions where plaintiff had time to file grievance before alleged threat occurred and plaintiff filed grievances on other issues after this claim arose).
6. Booth v. Churner
The final reason advanced by the plaintiff for failing to pursue administrative remedies is that the Supreme Court had yet to rule in Booth v. Churner when his claims arose. He argues that since Booth was decided he has made a "good faith, bona fide effort to exhaust administrative remedies" and should be allowed to proceed with his cases. (2834 Third Am. Compl., ¶ 28; 3726 Third Am. Compl., ¶ 23). Indeed, it appears that since filing both lawsuits in 2000, Mr. Berry has attempted to complete the five-step process required in the City's grievance policy. (Plaintiff's Objections and Responses to NYC Defendant's Amended Notice of Motion/Motion to Dismiss ("2834 Pl. Resp."), Exh. E (Plaintiff's Objections and Responses to NYC Defendant's Amended Notice of Motion/Motion to Dismiss) ("3726 Pl. Resp."), Exh. E). Unfortunately, this does not cure his failure to exhaust. The Second Circuit has recently made clear that "exhausting administrative remedies after a complaint is filed will not save a case from dismissal." Neal v. Goord, 267 F.3d 116, 121 (2d Cir. 2001) (citation omitted); see also Martinez v. Dr. Williams R., 186 F. Supp.2d 353, 356 (S.D.N.Y. 2002).
Prior to Booth, courts were split over whether plaintiffs had to exhaust if they were only seeking monetary damages and monetary relief was not available through the administrative process. In Booth, the Supreme Court held that the administrative exhaustion requirement applies regardless of the type of remedy sought by the plaintiff. 532 U.S. 731, 740-41 (2001).
Accordingly, because the exhaustion requirement applies, and because Mr. Berry admits that he did not complete the grievance process in either case, the defendants are entitled to the dismissal of all of Mr. Berry's claims.
C. Form of Dismissal
The next question is whether the claims should be dismissed with or without prejudice. "A dismissal for failure to exhaust administrative remedies is usually without prejudice, Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir. 2002). However, where a prisoner remains incarcerated but can no longer invoke the applicable administrative remedies because he has been transferred to the custody of a different government, dismissal with prejudice is appropriate." Polanco, 2002 WL 272401, at *3 (citing Burns, 2002 WL 91607, at *7). In Burns, the court found that because the plaintiff had administrative remedies available to him while at Riker's Island and he failed to exhaust them, his claims should be dismissed with prejudice because, after a transfer into state custody, he no longer has those city administrative remedies available to him. 2002 WL 91607, at *6-7.
Likewise, in this case Mr. Berry no longer has administrative remedies available to him. In response to his attempts to exhaust, the plaintiff received a letter dated November 6, 2001, from the Warden at the Queens Detention Complex stating that since he was no longer in the custody of the DOC, "no further action" would be taken on his claims. (2834 Pl. Resp., Exh. E-7; 3726 Pl. Resp., Exh. E-7). He attaches to his complaints another letter dated January 18, 2002, from the DOC stating that his appeal was "not properly filed," was "untimely," and does "not comply with the grievance procedure" of the DOC since his grievances were filed after he had left the custody of the DOC. (2834 Pl. Resp., Exh. E-27; 3726 Pl. Resp., Exh. E-23).
Therefore, since exhaustion is no longer possible, there is no reason to dismiss this action without prejudice so that the plaintiff can seek exhaustion. All of Mr. Berry's claims should be dismissed with prejudice.
D. Motion for Stay
The plaintiff brings a motion to have the action stayed in both cases in order to give him time to exhaust his administrative remedies. This motion should be denied on futility grounds for the reasons described above. In addition, the PLRA eliminated the provision that allowed a district court to continue a § 1983 case for up to 180 days so that a prisoner could exhaust his remedies. "Such elimination lends strong support to the conclusion that dismissal is warranted in [these cases]." Neal, 267 F.3d at 122 (citing Perez v. Wisconsin Department of Corrections, 182 F.3d 532, 537 (7th Cir. 1999) (amended PLRA "makes exhaustion a precondition to suit" so that "a case filed before exhaustion has been accomplished must be dismissed")). Therefore, the plaintiff's motion to stay pending exhaustion should be denied.
E. Motions to Amend
The plaintiff's motions to file amended complaints in both 2834 and 3726 should be denied. A motion to amend is governed by Rule 15(a) of the Federal Rules of Civil procedure, which states that leave to amend "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a); See Ronzani v. Sanofi S.A., 899 F.2d 195, 198 (2d Cir. 1990); Elliott Associates, L.P. v. Covance, Inc., No. 00 Civ. 4115, 2000 WL 1752848, at *12 (S.D.N.Y. Nov. 28, 2000). Notwithstanding the liberality of the general rule, whether "to grant or deny a motion to amend is within the sound discretion of the trial court," and for the proper reasons, a court may deny permission to amend, in whole or in part. Krumme v. WestPoint Stevens Inc., 143 F.3d 71, 88 (2d Cir. 1998) (citations omitted). In discussing the proper use of this discretion, the Supreme Court has stated:
In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should be "freely given."
Foman v. Davis, 371 U.S. 178, 182 (1962).
Here, the motions should be denied as futile since the proposed amended complaints do not cure Mr. Berry's failure to exhaust. See Alvarez v. United States, No. 98 Civ. 3179, 2000 WL 557328, at *2 (S.D.N.Y. May 8) (motion to amend denied where "[p]laintiff's new cause of action suffers from the same defect as the original one. It represents a claim under federal law by a prisoner who had not exhausted his administrative remedies."), rev'd on reconsideration on other grounds, No. 98 Civ. 3179, 2000 WL 679009 (S.D.N.Y. May 24, 2000); see also Hayden v. County of Nassau, 180 F.3d 42, 51 (2d Cir. 1999) ("[W]here the plaintiff is unable to demonstrate that he would be able to amend his complaint in a manner which would survive dismissal, opportunity to replead is rightfully denied."); Liner v. Goord, 115 F. Supp.2d 432, 434 (S.D.N.Y. 2000) (where plaintiff fails to correct defects in initial pleading through filing of amended complaint, the amended complaint is dismissed with prejudice); Jones v. New York State Division of Military and Naval Affairs, No. 93 Civ. 0862, 1997 WL 266765, at *10.ll (N.D.N.Y. May 7, 1997) (motion to amend complaint denied as futile where plaintiff failed to exhaust), aff'd, 166 F.3d 45 (2d Cir. 1999)
F. Default Judgment
Finally, the plaintiff has moved for default judgments alleging that (1) the City defendants and the St. Barnabas defendants have failed to respond to discovery demands; and (2) the City defendants have failed to respond to the plaintiff's Second Amended Complaint in 2834. (2834 Plaintiff's Objections and Permission to enter Default Judgment against NYC Defendants ("2834 Pl. Obj."), ¶ 11; 3726 Plaintiff's Objections and Permission to enter Default Judgment against NYC Defendants, ¶ 14; 2834 Plaintiff's Objections and Permission to enter Default Judgment against St. Barnabas Hospital Defendants ¶ 6).
These arguments are without merit. As for Mr. Berry's discovery complaints, he made a motion to compel earlier in both cases and by an Order dated October 29, 2001, I denied the motion, finding that the defendants represented that they had produced all responsive documents and that interrogatories the plaintiff sought to have answered were duplicative. The plaintiff was given permission to renew his motion if he could identify specific requests that the defendants had not answered. He failed to do that. His primary contention seems to be that because the defendants made general objections in the discovery process, there are additional documents which have not yet been turned over. The defendants, however, counter that general objections were made merely to preserve their rights and were not indicative of any additional material. (Reply Declaration of Liora Jacobi in Further Support of Defendants' Motion to Dismiss the Complaint, ¶ 9). They maintain they have produced all relevant discovery in their possession, and since nothing the plaintiff alleges suggests otherwise, the motion for default judgment on this ground should be denied.
The plaintiff's second argument, that the City defendants have failed to timely respond to the plaintiff's Second Amended Complaint in 2834, is simply not supported by the record. As Mr. Berry himself points out, the defendants were granted extensions from the Court and have responded to the plaintiff' s complaint with their current motion to dismiss. (2834 Pl. Obj., ¶¶ 1, 2). Thus, Mr. Berry's motion for a default judgment should be denied.
Conclusion
For the reasons set forth above, I recommend that the City defendants' motion to dismiss and the St. Barnabas defendants' motion for judgment on the pleadings be granted and that the plaintiff's motion to amend, motion for a stay, and motion for a default judgment be denied. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Richard M. Berman, Room 201, 40 Foley Square, New York, New York 10007 and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.