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taking judicial notice, absent objection, of DOC Inmate Grievance Resolution Program Directive
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No. 01 Civ. 10936 (KM)(FM)
February 18, 2003
Luis Hernandez, pro se, Bronx, NY.
Zachary A. Cunha, Assistant Corporation Counsel.
REPORT AND RECOMMENDATION TO THE HONORABLE KIMBA M. WOOD
I. Introduction
In this civil rights action pursuant to 42 U.S.C. § 1983, pro se petitioner Luis Hernandez, who has been diagnosed as a chronic undifferentiated schizophrenic, alleges that the doctors responsible for his treatment at Rikers Island were deliberately indifferent to his medical needs. Hernandez has named as defendants the New Y ork City Department of Correction ("DOC"), St. Barnabas Hospital, and two psychiatrists.
The DOC has now moved to dismiss the complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, on the grounds that (1) DOC is not a suable entity, (2) Hernandez failed to exhaust his administrative remedies, and (3) Hernandez has failed to state a legally sufficient claim for relief. Hernandez, in turn, has filed a cross-motion to amend his complaint. As set forth below, DOC's motion should be granted and the complaint dismissed with prejudice as against DOC and without prejudice as against the remaining defendants. Additionally, the cross-motion should be denied.
II. Background A. Facts
The complaint, which must be taken as true for present purposes, alleges that Hernandez arrived at the Adolescent Reception and Detention Center ("ARDC") on Rikers Island in early July 2001. Upon his arrival, Hernandez advised the ARDC clinic staff of his schizophrenia. (Compl. ¶ IV). The first doctor to see Hernandez was defendant Roberto Chavez, who prescribed Paxil, an anti-depressant, but not Haldol, Cogentin or Respiradone, which Hernandez thought were necessary to treat his schizophrenia. (Id.). Later, during a second visit to the clinic, Hernandez saw a Dr. Sultan, w ho continued to prescribe only Paxil. (Id.). Hernandez alleges that the defendants' failure to properly treat his mental illness led to a variety of mental and physical problems, including night sweats, panic attacks and black-outs, one of which caused him to fall in the shower and suffer a back injury. (Id. ¶ IV-A).
B. Procedural History
Hernandez's complaint is dated October 20, 2001, and was received by the Pro Se Office of the Court on November 5, 2001. (See Docket N o. 2 at 1). In his complaint, Hernandez stated that he presented his grievance concerning his medical 2 treatment to the "grievance coordinator at ARDC" and that a decision was "pending." (Id. ¶ II.C).
On March 8, 2002, DOC moved to dismiss the complaint. (Docket No. 10). In his opposition papers, dated March 27, 2002, Hernandez stated that he filed "two separate grievances detailing the facts relating to [his] complaint." (Hernandez D ecl. dated March 27, 2002 ("Hernandez I"), ¶ 13). As he later explained, the first such grievance related to the denial of needed medication; the second to DOC's alleged failure to respond to the first grievance and his back injury. (Docket No. 15 at 10). According to Hernandez, when he did not receive any responses for "well in excess of thirty (30) days," he "took this as a constructive denial and commenced this action." (Id.).
Hernandez's opposition papers also sought leave to file an amended complaint dropping certain defendants and adding the City of New York as a defendant. (See Hernandez Notice of Motion at 2).
It does not appear that Hernandez's cross motion was docketed. I have therefore asked the Clerk of the Court to docket Hernandez's courtesy copy as an original.
Hernandez and the DOC also served additional papers addressing Hernandez's claim that he had exhausted his administrative remedies, only two of which are relevant to the discussion below. In his "Reply to All of Defendants' Opposition Papers," Hernandez noted that he w ished to amend the complaint to reflect that he "did in fact exhaust available administrative remedies prior to commencing this action." (Docket No. 15 ¶ 8). As noted above, however, Hernandez admits that his efforts to exhaust consisted solely of treating DOC's alleged failure to respond as a "constructive denial" which allegedly entitled him to file this action. Additionally, in its reply papers, DOC states that Hernandez's first grievance was resolved informally by the Inmate Grievance Resolution Committee and that Hernandez did not request a hearing. (See Decl. of Zachary A. Cunha, Esq., dated April 12, 2002, Ex. AA (Grievance dated Oct. 17. 2001)).
III. Discussion A Standard of Review
In reviewing a Rule 12(b)(6) motion to dismiss for failure to state a claim, the Court must accept as true all factual allegations made in the complaint and draw all reasonable inferences in favor of the plaintiff. See Leatherman v. Tarrant County Narcotics Intelligence Coordination U nit, 507 U.S. 163, 164, 113 S.Ct. 1160, 1161, 122 L.Ed.2d 517 (1993); Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999); Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995). The court may grant the motion only when "it appears beyond doubt . . . that the plaintiff can prove no set of facts [in support of his claim] which would entitle him to relief." Sec. Investor Prot. Corp. v. BDO Seidman, LLP, 222 F.3d 63, 68 (2d Cir. 2000) (quoting Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997)); Walker v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992).
Moreover, when a plaintiff is proceeding pro se, as here, the complaint must be held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) (per curiam). Accordingly, the allegations must be read "liberally" and interpreted "to raise the strongest arguments that they suggest." Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). This principle applies with particular force in cases such as this in which a pro se plaintiff alleges violations of his civil rights. See, e.g., Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001); Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993); Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991).
In keeping with these precepts, although Rule 12(b)(6) generally restricts a court's consideration to the four corners of the complaint, pro se pleadings may be read together to determine whether a plaintiff conceivably could be entitled to relief. See, e.g., Donahue v. United States Dep't of Justice, 751 F. Supp. 45, 49 (S.D.N.Y. 1990) ("The policy reasons favoring liberal construction of pro se pleadings warrant the Court's consideration of the allegations contained in plaintiffs' memorandum of law, at least where those allegations are consistent with the allegations in the complaint."); Gadson v. Goord, 1997 WL 714878, at *1 n. 2 (S.D.N.Y. Nov. 17, 1997) (Sotomayor, J.) (considering allegations set forth in plaintiff's motion papers in deciding defendants' Rule 12(b)(6) motion); Burgess v. Goord, 1999 WL 33458, at *1 n. 1 (S.D.N.Y. Jan. 26, 1999). Courts also properly may look beyond the complaint when a party seeks its dismissal for lack of subject matter jurisdiction. See Kamen v. American Tel. Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986); Exchange Nat'l Bank of Chicago v. Touche Ross Co., 544 F.2d 1126, 1130-31 (2d Cir. 1976); Marsden v. Federal B.O.P., 856 F. Supp. 832, 835 (S.D.N.Y. 1994). Although DOC has moved to dismiss the complaint pursuant to Rule 12(b)(6), a motion to dismiss based upon a failure to exhaust administrative remedies constitutes such a jurisdictional challenge. See Harris v. Totten, 2003 WL 221745, at *1 (S.D.N.Y. Jan. 31, 2003) (motion to dismiss for failure to exhaust is "properly construed as a motion to dismiss for lack of jurisdiction over the subject matter pursuant to Rule 12(b)(1)"); Long v. Lafko, 2001 WL 863422, at *1 (S.D.N.Y. July 31, 2001) ("Courts in the Second Circuit have treated [a] failure to exhaust administrative remedies . . . as implicating a court's subject matter jurisdiction."); see also Kelly v. Runyon, 1997 WL 757918, at *2 (S.D.N.Y. Dec. 8, 1997) (noting that "motions predicated on a failure to exhaust administrative remedies are regularly brought pursuant to Rule 12(b)(6)").
III. Discussion A. DOC
Section 396 of the New York City Charter provides that "[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the [C]ity of New York and not in that of any agency, except where otherwise provided by law." DOC, as an agency of the City, consequently, is a not a suable entity. See, e.g., David v. G.M.D.C., 2002 WL 31748592, at *2 (S.D.N.Y. Dec. 6, 2002) (dismissing claim against George Motchan Detention Center at Rikers Island as violative of § 396); Sultan v. New York City Dep't of Buildings, 2000 WL 262923, at *2 (S.D.N.Y. Mar. 7, 2000) (dismissing claims against Police and Buildings Departments on same ground); Echevarria v. DOC, 48 F. Supp.2d 388, 391 (S.D.N.Y. 1999) (dismissing claims against DOC on same ground); Adams v. Galletta, 966 F. Supp. 210, 212 (S.D.N.Y. 1997) (collecting cases). Although this defect could be cured by amending the complaint to name the City of New York as a defendant, such an amendment would be futile in view of Hernandez's failure to exhaust his remedies.
B. Exhaustion
The Prisoner Litigation Reform Act of 1995 provides that "[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 . . . until such administrative remedies as are available are exhausted." See 42 U.S.C. § 1997e(a); Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001) ("[C]ourts must take care not to frustrate the policy concerns underlying § 1997e(a) by allowing inmate-plaintiffs to file or proceed with lawsuits before exhausting administrative remedies.") This 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." Porter v. Nussle, 534 U.S. 516, 532, 984 122 S.Ct. 983, 992, 152 L.Ed.2d 12 (2002). Moreover, a prisoner must 7 exhaust his remedies even if the relief that he seeks is unavailable in the administrative forum. See Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 1825, 149 L.Ed.2d 958 (2001).
Here, the DOC's established procedures provide for several levels of review of an inmate's grievances. First, the inmate must file a complaint with an Inmate Grievance Resolution Committee ("IGRC"), which "attempts to resolve the grievance informally within five working days." (DOC Inmate Grievance Resolution Program ("IGRP"), Directive 3375R, § III.B.1). If this effort is unsuccessful, the inmate may request a an formal IGRC hearing at which witnesses may testify. (Id. § III.B.2). If the result of this process is unacceptable to the inmate, he has several additional levels of appeal available. (Id. § III.B.3-5). At every stage, the IGRP sets forth time limits for a decision and states that a failure to comply with those time frames affords the inmate the option of appealing to the next level. (Id. § III.B.6).
In its papers, the DOC asks the Court to take judicial notice of these procedures. Hernandez has not opposed this application. Consequently, because the procedures do not appear to be in dispute, I have taken judicial notice of them. See Fed.R.Evid. 201(b),(d); Christman v. Skinner, 468 F.2d 723, 726 (2d Cir. 1972) (proper for trial court to take judicial notice of state prison regulations concerning books and magazines).
In this case, notwithstanding Hernandez's conclusory assertion that he exhausted his remedies, it is apparent that he did not. First, his complaint expressly notes that his grievance was pending w hen this suit was commenced. (See Compl. ¶ II.C.2). Second, although Hernandez states that he deemed the lack of a timely response to his grievance to be a denial, it is clear that he did not pursue the levels of review available to him and, therefore, has not exhausted his administrative remedies. The fact that Hernandez left Rikers som e time ago and consequently may not be able to cure this jurisdictional defect does not entitle him to proceed without having pursued the administrative remedies that were available to him. See, e.g., Santiago v. Meinsen, 89 F. Supp.2d 435, 440-41 (S.D.N.Y. 2000) (quoting Wright v. Morris, 111 F.3d 414, 417 n. 3 (6th Cir. 1997) ("[I]t would be contrary to Congress' intent in enacting the PLRA to allow inmates to bypass the exhaustion requirement by declining to file administrative complaints and then complaining that administrative remedies are time-barred and thus not available.").
IV. Conclusion
For the foregoing reasons, the complaint should be dismissed with prejudice against the DOC and without prejudice as to the remaining defendants.
V. Notice of Procedure for Filing of Objections
The parties shall have ten days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a) and (e). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Kimba M. Wood and the undersigned, at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing 9 parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Wood. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Fed.R.Civ.P. 6(a), 6(e), 72(b).