Opinion
06 Civ. 3188 (SAS).
June 4, 2007
Plaintiff (Pro Se): Robert George #57557-054, Metropolitan Correctional Center, New York, New York.
For Defendants: Robert William Yalen, Assistant United States Attorney, New York, New York.
OPINION AND ORDER
Robert George, Jr., a pre-trial detainee at the Metropolitan Correctional Center in New York ("MCC"), proceeding pro se, brings suit under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics against defendants James Dupree, Guy Guirty, Miguel Monge, Marvin Morrisson, and Courtney Shepard, all of whom are present or former employees of the Federal Bureau of Prisons ("BOP"). George alleges several violations of his constitutionally protected rights arising from incidents of mistreatment by defendants and other BOP employees between January 10, 2006 and May 5, 2006. He seeks $150,000,000.00 in damages, as well as injunctive relief with regard to his claim that the defendants failed to place him in protective custody.
403 U.S. 388 (1971).
Defendants Dupree, Guirty, and Monge are sued incorrectly herein as "Officer Dupred," "Guilty Officer," and "Officer Munchy," respectively.
Although George's Amended Complaint ("Am. Compl.") alleges a claim under section 1983 of Title 42 of the United States Code, the defendants are named in their personal capacities as present and former employees of the BOP. As such, they are not persons acting under color of state law for purposes of section 1983, which does not create a cause of action against persons acting under color of federal law. See 42 U.S.C. § 1983; Bivens, 403 U.S. at 398. In view of George's pro se status, I will construe his section 1983 claim as an action under Bivens. See Tavarez v. Reno, 54 F.3d 109 (2d Cir. 1995) (approving district court's recasting of a section 1983 claim brought by a pro se inmate against federal officers as a Bivens claim).
See Am. Compl. ¶ II(C).
See id. ¶ V.
Defendants have moved to dismiss for failure to exhaust administrative remedies before bringing suit, for failure to state a claim under which relief can be granted, and for failure to allege any personal involvement by the individual defendants. Plaintiff opposed this motion. For the following reasons, defendants' motion is granted and this case is dismissed.
See 42 U.S.C. § 1997e(a).
I. BACKGROUND
A. Facts
For purposes of this motion, the factual allegations contained in George's Amended Complaint are taken to be true. Between January 10, 2006 and May 5, 2006, while detained at the MCC, George was subjected to several claimed violations of his constitutionally protected rights. Specifically, George was: (1) transferred without cause or due process into the Special Housing Unit of the MCC by the prison's Special Investigative Supervisors; (2) denied protective custody by defendants Morrison and Shepard; (3) poisoned by prison food that he received from defendants Dupree, Guirty, and Monge, as well as five John Does, five Jane Does, and several other individuals not named as defendants; and (4) sexually abused by defendant Guirty. George had earlier alleged four additional violations of his rights — verbal abuse, insufficient access to a law library, insufficient attorney telephone calling privileges, and insufficient non-attorney telephone calling privileges — but these claims were dismissed by then-Chief Judge Michael B. Mukasey.
See Am. Compl. ¶¶ II(C)-(D).
See Plaintiff's Opposition to Defendants' Motion to Dismiss ("Pl. Opp.") at 1.
See Am. Compl. ¶ III(D).
See id.
See id.
See id.
See Order dated July 19, 2006 ("July 19 Order").
George initially sought administrative redress under the MCC's grievance process for the alleged constitutional violations by filing a "cop-out," which is prison slang for an informal complaint. Subsequently, George filed a BP-8 grievance form, to which he received no response. George then filed a form BP-9 to pursue his grievance with the acting warden of the MCC (Morrisson). Again receiving no respons, George abandoned the administrative grievance program and brought suit.
Id. ¶ IV(C).
See Baez v. Kahanowicz, No. 03 Civ. 4658, 2007 WL 102871, at *1 (S.D.N.Y. Jan. 17, 2007) (describing "cop-outs").
See id. at * 1 n. 3 (differentiating cop-outs from form BP-8, which is the "initial, informal grievance filing required under the Federal Bureau of Prisons Administrative Remedy Program").
See January 22, 2007 Letter from Plaintiff to the Court ("1/22/07 Ltr.") at 1.
See 28 C.F.R. § 542.14(a) (identifying form BP-9).
See Am. Compl. ¶ IV(F).
See 1/22/07 Ltr. at 1.
B. Procedural History
George's initial Complaint in this matter, dated February 11, 2006, was received by the Court's Pro Se Office on February 15, 2006. The initial Complaint was dismissed without prejudice on April 25, 2006, by Judge Mukasey. On May 9, 2006, George filed an Amended Complaint. Four of the claims included in the Amended Complaint were dismissed sua sponte. The case was then transferred to this Court on July 26, 2006. George submitted an application seeking the appointment of pro bono counsel, which was denied in an Order dated February 28, 2007. On March 20, 2007, defendants filed the instant motion to dismiss.
See July 19 Order.
II. LEGAL STANDARD
A. Motion to Dismiss
"Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief.' Specific facts are not necessary. . . ." When a complaint is attacked by a Rule 12(b)(6) motion to dismiss, the plaintiff need not provide "detailed factual allegations." To survive a motion to dismiss, it is enough that the complaint "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Furthermore, when the plaintiff is proceeding pro se, the complaint "must be held to less stringent standards than formal pleadings drafted by lawyers." This is particularly important where a pro se plaintiff alleges a civil rights violation.
Erickson v. Pardus, 551 U.S. ___, slip op. at 5 (2007).
Bell Atlantic Corp. v. Twombly, 550 U.S. ___, 127 S. Ct. 1955, 1964 (2007).
Id.
Estelle v. Gamble, 429 U.S. 97, 106 (1976) (citation omitted).
See Phillips v. Girdich, 408 F.3d 147, 128 ("But as low as the requirements are for a complaint drafted by competent counsel, we hold pro se complaints to an even lower standard.") (citing Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam)).
The task of the court is "merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." When deciding a defendant's motion to dismiss under Rule 12(b)(6), a judge must "accept as true all of the factual allegations contained in the complaint" and "draw all reasonable inferences in plaintiff's favor." While there are legitimate reasons to dismiss a case under Rule 12(b)(6), "[t]he case cannot, however, be dismissed on the ground that petitioner's allegations of harm were too conclusory to put these matters in issue." Thus, the court must take the plaintiff's allegations as true, but "the claim may still fail as a matter of law if it appears . . . that the plaintiff can prove no set of facts in support of its claim which would entitle [him] to relief, or if the claim is not legally feasible."
Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 176 (2d Cir. 2004) (quotation marks and citation omitted).
Bell Atlantic, 550 U.S. ___, 127 S. Ct. at 1975 (citation omitted).
Ofori-Tenkorang v. American Int'l Group, Inc., 460 F.3d 296, 298 (2d Cir. 2006).
Erickson, slip op. at 7 (2007).
In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 457 F. Supp. 2d 455, 459 (S.D.N.Y. 2006) (citing Allaire Corp. v. Okumus, 433 F.3d 248, 250 (2d Cir. 2006)).
B. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act of 1995 (" PLRA") mandates exhaustion by prisoners of all administrative remedies before bringing an action regarding prison conditions. Unlike previous versions of the PLRA, which encompassed only section 1983 suits, exhaustion is now required for all "action[s] . . . brought with respect to prison conditions," whether under section 1983 or "any other Federal law." Thus, federal prisoners suing under Bivens must satisfy the PLRA exhaustion requirement, just as state prisoners must when suing under section 1983.
See 42 U.S.C. § 1997e(a), which 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."
Porter v. Nussle, 534 U.S. 516, 524 (2002).
See id.
The PLRA's exhaustion requirement is mandatory. Failure to exhaust is an absolute bar to an inmate's action in federal court: "[section] 1997e(a) requires exhaustion of available administrative remedies before inmate-plaintiffs may bring their federal claims to court at all." Because the plain language of section 1997e(a) states "no action shall be brought," an inmate must have exhausted his claims at the time of the initial filing, given that "[s]ubsequent exhaustion after suit is filed . . . is insufficient." Moreover, the exhaustion of administrative remedies must be proper — that is, in compliance with a prison grievance program's deadlines and other critical procedural rules — in order to suffice. Furthermore, the United States Supreme Court has held that "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong."
See id. at 516. See also Booth v. Churner, 532 U.S. 732, 739 (2001).
Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001) (quotation marks and citation omitted, emphasis in original).
Id.
See Woodford v. Ngo, 126 S. Ct. 2378, 2386-87 (2006).
Porter, 534 U.S. at 532.
Before bringing suit in federal court, an inmate must fully present his claim for internal resolution within the correctional facility and the BOP. The Administrative Remedy Program ("ARP") is the administrative vehicle used by the BOP. The ARP provides a four-step process that allows an inmate "to seek formal review of an issue relating to any aspect of his/her own confinement." If an inmate receives a denial of — or otherwise unsatisfactory response to — his grievance at any of the first three levels of the ARP, the inmate may bring his grievance to the next level for reconsideration. If, at any level, no response to the grievance is provided within the statutory period, an inmate may consider the grievance denied at that level.
See 28 C.F.R. Part 542. The ARP process begins with the filing of form BP-8, an informal presentation of the inmate's grievance to the staff. See id. § 542.13. If the inmate finds the result of the informal resolution process unsatisfactory, the inmate may bring his grievance to the facility's warden by filing a formal Administrative Remedy Request — form BP-9 — within twenty days of the occurrence of the event which forms the basis of the grievance. See id. § 542.14. If the inmate finds the Warden's response unsatisfactory, the inmate may submit an Appeal — form BP-10 — to the Regional Director within twenty days of the Warden's response. See id. § 542.15. Finally, an inmate who is not satisfied with the Regional Director's response may submit an Appeal — form BP-11 — to the General Counsel within thirty days of the Regional Director's response. See id.
28 C.F.R. § 542.10.
See id. §§ 542.14-542.15.
See id. § 542.18. Accord Williams v. United States, No. 02 Civ. 6523, 2004 WL 906221, at *7 (S.D.N.Y. Apr. 28, 2004) ("The BOP's failure to respond to a grievance within the specified time period constitutes a denial of the grievance and permits the inmate to appeal the decision to the next highest level.").
In order to survive a motion to dismiss, an inmate/plaintiff must have fully exhausted administrative remedies at all levels of appeal. In sum, an inmate/plaintiff must file a grievance and follow it through all three levels of appeal offered by the BOP before bringing suit in Federal court. Thus, an inmate/plaintiff's claim is not exhausted until he appeals to the BOP's General Counsel and receives a final decision regarding his grievance.
See Mendez v. Artuz, No. 01 Civ. 4157, 2002 WL 313796, at *2 (S.D.N.Y. Feb. 27, 2002) ("[T]he exhaustion requirement is not satisfied until the administrative process has reached a final result.").
See Francis v. Zavadill, No. 06 Civ. 249, 2006 WL 3103324, at *3 (S.D.N.Y. Oct. 30, 2006).
See Mendez, 2002 WL 313796, at *2.
III. DISCUSSION
Even if George's allegations concerning his filing of grievances are taken to be true, it is clear that George did not fully exhaust the ARP. Although the applicability of the PLRA's exhaustion requirement is indisputable, George failed to file the requisite appeals to the Regional Director and General Counsel of the BOP before bringing this action. Plaintiff's own statements demonstrate that an appeals process was available to him and that he was aware of the BOP's regulatory requirements. However, after submitting an initial informal request for resolution, and then filing an Administrative Remedy Request with the Warden, George failed to exhaust the remaining two levels of appeal. For this reason, George's Amended Complaint must be dismissed.
Indeed, the form complaint used by George to initiate this action quotes the PLRA's exhaustion requirement. See Am. Compl. ¶ IV.
See id. ¶ IV(C), (F)(3).
George's Amended Complaint initially denies the existence of an administrative grievance procedure, see id. ¶ IV(B), but then acknowledges George's partial use of such a procedure. See id. ¶ IV(F). In his opposition papers, however, plaintiff recognizes that the ARP was available. See Pl. Opp. at 2.
See Pl. Opp. at 2 ("Even if BOP regulations require the four-step process . . .").
The Second Circuit does not excuse a failure to exhaust when an inmate/plaintiff admittedly did not appeal to the highest available level of administrative review and provides no justifiable explanation for his failure to do so. In his opposition papers, George attempts to justify his failure to meet the exhaustion requirement on the ground that he was "stone-walled" in his attempts to utilize the ARP, and that in light of the Warden's failure to respond to his BP-9 submission, he could not "be expected to pursue this issue." It is well-settled, however, that "even when an inmate files a grievance and receives no response, he must nevertheless properly exhaust all appeals before his grievance is considered exhausted." Moreover, the ARP, with which George has admitted familiarity, specifically addresses situations in which a grievant receives no response within the statutory period. Thus, George's attempt to excuse his failure to exhaust by arguing that he could not "be expected to pursue this issue" administratively given the Warden's lack of response, is unavailing. Because George has provided no justifiable explanation for his failure to appeal, his case must be dismissed for failure to exhaust administrative remedies.
See Berry v. Kerik, 366 F.3d 85, 88 (2d Cir. 2004) (stating that "in the absence of any justification for not pursuing available remedies," plaintiff/inmate's federal lawsuits were properly dismissed for failure to exhaust).
Pl. Opp. at 2.
Id.
Bligen v. Griffen, No. 06 Civ. 4400, 2007 WL 430427, at *2 (S.D.N.Y. Feb. 8, 2007) (emphasis added). See also Williams v. City of New York, No. 03 Civ. 5342, 2005 WL 2862007, at *10 (S.D.N.Y. Nov. 1, 2005) ("Even where an inmate files a grievance yet receives no response, the inmate must nevertheless exhaust his appeals.").
See Pl. Opp. at 2.
See 28 C.F.R. § 542.18 (allowing inmates to "consider the absence of a response to be a denial at that level" if the allotted time expires).
Pl. Opp. at 2.
While George cannot justify his failure to fully exhaust the administrative process before bringing this action, he did take reasonable steps in pursuit of administrative redress in conformity with the ARP — namely, the filing of forms BP-8 and BP-9 — before bringing this action. In this regard, George's case is similar to Rhames v. Federal Bureau of Prisons, in which the inmate/plaintiff followed his grievance through the second (BP-9) level, in addition to making "persistent complaints" to BOP personnel, before bringing suit. In Rhames, as here, the inmate/plaintiff had received no response to his administrative grievances. The court noted that while it "is important that prisoners comply with administrative procedures designed by the [BOP] . . . it is equally important that form not create a snare of forfeiture for a prisoner seeking redress for perceived violations of his constitutional rights." With those considerations in mind, the Rhames court concluded that the inmate/plaintiff had indeed satisfied the PLRA's exhaustion requirement by pursuing his grievance to the BP-9 level.
See id. See also Am. Compl. ¶ IV(F).
2002 WL 1268005, at *5 (S.D.N.Y. Jun. 6, 2002).
See id. at *3.
Id. (emphasis added).
The Supreme Court has since instructed that the exhaustion requirement can only be satisfied with proper exhaustion. Under this standard, George's claims cannot be considered exhausted, as he only pursued his grievances to the second of four available levels. Nonetheless, I conclude that dismissing George's Amended Complaint with prejudice — and thereby denying him any possibility of redress for his perceived wrongs — would not be equitable. Such a result creates a perverse incentive for prison administrators by rewarding them for ignoring an inmate's grievances, causing the inmate to either give up or prematurely file suit and suffer dismissal based on failure to exhaust administrative remedies, thereby foreclosing possibility of redress. A dismissal of George's complaint with prejudice would indeed create a "snare of forfeiture."
See Woodford, 126 S. Ct. at 2387.
The ARP requires that an inmate dissatisfied with the response his grievance receives at the BP-9 level file an appeal within twenty days of the filing of that response. See 28 C.F.R. § 542.15. Since the absence of a response within the statutory time period constitutes a de facto denial at that level, see id. at § 542.14, George's BP-9 was denied twenty days after he filed it. In the time between the denial of his BP-9 submission and the signing of this Order, George's window for appealing his grievance to the BP-10 level has closed, and the ARP no longer offers him the possibility of redress.
It is worth noting that the ARP explicitly places responsibility on the Warden and various other officials to "[a]cknowledge receipt of a Request . . . submitted by an inmate[,]" id. at § 542.11(a)(1), and to "[r]espond to and sign all Requests. . . ." Id. at § 542.11(a)(4). George's allegations indicate that defendants have ignored the mandates of the same statute they invoke in support of their motion to dismiss.
Rhames, 2002 WL 1268005, at *5.
Prison officials are entitled under the PLRA to demand conformity with the administrative grievance procedures offered to prisoners. The case law mandates that an inmate's failure to fully exhaust before bringing suit requires dismissal. However, George's alleged attempts to utilize the ARP have earned him a response from the MCC. Therefore, assuming that George did indeed file grievances that were pursued to the BP-9 level, should George decide to appeal the de facto denial of his grievance to the BP-10 level within thirty (30) days of this Order, the BOP is hereby ordered to consider his appeal timely for purposes of the ARP and issue a response within thirty (30) days of receipt thereof. If and when George satisfies the exhaustion requirements of the PLRA, by appealing to the fourth (BP-11) level, he may again file suit in federal court.
See Williams, 2005 WL 2862007, at * 10.
See Neal, 267 F.3d at 122.
Furthermore, plaintiff's request for injunctive relief is denied. A permanent injunction may only be issued after a valid adjudication of the merits and a showing of actual success on the merits. Because plaintiff's case has been dismissed, his request that he be placed in "protective custody" must be denied.
See Francis, 2006 WL 3103324, at *4 (citing Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n. 12 (1987)).
Am. Compl. ¶ V.
As George's non-compliance with the PLRA sufficiently disposes of this motion, I need not address defendants' alternative grounds for dismissal at this time.
IV. CONCLUSION
For the reasons stated above, defendants' motion to dismiss is granted and this case is dismissed without prejudice. The Clerk of the Court is directed to close this motion (Document #20) and this case.
SO ORDERED: