Opinion
No. 00 Civ. 7691 (LAK) (GWG)
January 7, 2003
REPORT AND RECOMMENDATION To the Hon. Lewis A. Kaplan United States District Judge
Salih Khalid filed this action pro se on October 12, 2000, asserting claims under 42 U.S.C. § 1983. On November 27, 2000, he filed an amended complaint naming two defendants: Lieutenant Farrell and Officer Reda. Summary judgment has already been granted in favor of Officer Reda. See Khalid v. Reda, 2002 WL 31133086 (S.D.N.Y. Sept. 24, 2002) (adopting 2002 WL 31014827 (S.D.N.Y. Sept. 10, 2002) (Report and Recommendation)). Farrell now moves for dismissal pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Khalid has not opposed this motion. For the following reasons, Farrell's motion should be granted and the action dismissed.
I. BACKGROUND A. Facts
The facts as set forth in the complaint and documents attached thereto are assumed for purposes of this motion to be true.
Khalid was involved in an altercation with another inmate on September 26, 1999. Amended Complaint, filed November 27, 2000 ("Complaint"), ¶ 1. Subsequent to this altercation, which Officer Reda witnessed, Khalid was confined to a special housing unit ("SHU") pending a Tier III disciplinary hearing. Id., ¶¶ 2, 5-6. Lieutenant Farrell was designated to conduct this hearing, which prison regulations required be held by October 2, 1999. Id., ¶¶ 5, 7; see Sing Sing Correctional Facility Memorandum, dated September 27, 1999 (Complaint, Ex. B); see also 7 N.Y.C.R.R. § 251-5.1(a) (disciplinary hearing to commence within seven days of confinement unless commissioner grants extension). Prior to the hearing date, Khalid requested that Corrections Officer Azhan attend the hearing to serve as an Arabic interpreter. See Inmate Request Form, dated September 28, 1999 (Complaint, Ex. C). The day before the scheduled hearing Farrell issued a memorandum requesting an extension of time until October 5, 1999 to conduct the hearing due to the unavailability of Azhan and an "[e]mployee witness," both of whom were expected to return on that date. Disciplinary Hearing Extension Request, dated October 1, 1999 ("Extension Request Form") (Complaint, Ex. D), at 1-2. The request was granted. Id. at 2. The hearing in fact was held on October 4, 1999 — the day before the extended date. See Transcript of Hearing, dated October 4, 1999 (Complaint, Ex. E).
On October 4, 1999, Khalid pled guilty to fighting and was adjudged guilty of creating a disturbance and assault on an inmate. Disposition, dated October 4, 1999 (annexed to Complaint, Ex. G), at 1-2. As punishment, Farrell ordered Khalid confined to the SHU for thirty-six months with loss of packages, commissary and telephone privileges and recommended a loss of six months good time credit. Id. at 1. On October 15, 1999, Khalid appealed the determination on due process grounds, alleging that i) the decision was not based on substantial evidence; ii) he was denied a proper interpreter; and iii) he was given an inaudible tape of the hearing. Appeal Form to Commissioner, Superintendent's Hearing, dated October 15, 1999 ("Appeal of Hearing") (reproduced in Declaration of Benjamin Lee, dated October 14, 2002 ("Lee Decl."), Ex. A), at 3-7. Khalid submitted a supplemental appeal on October 28, 1999, in which he also alleged that Farrell had not been impartial. See Supplement [sic] Appeal, dated October 24, 1999 ("Supp. Appeal") (reproduced in Lee Decl., Ex. A), at 1-5.
The appeal documents filed by Khalid are being considered on this motion to dismiss because Khalid makes specific reference to his appeal of the disciplinary hearing in the complaint. See Complaint, ¶ XI; Ex. H. Having not responded to the motion to dismiss, Khalid has not disputed the authenticity of these documents.
The disposition was eventually modified to nine months SHU and a corresponding nine month loss of privileges, but there was no change in the original loss of good time credit. See Review of Superintendent's Hearing, dated December 7, 1999 (annexed to Complaint, Ex. H), at 1-2. Khalid later filed an Article 78 proceeding in New York Supreme Court challenging the disciplinary proceeding and penalty, which was transferred to the Appellate Division, Third Department and dismissed by order dated June 7, 2001. See Memorandum and Judgment, dated June 7, 2001 (reproduced in Lee Decl., Ex. B). The court found that Khalid's plea of guilty to the charge of fighting barred him from challenging the sufficiency of the evidence on that charge. Id. at 1. As for the remaining charges, the court found there was substantial evidence to support the finding of guilt. Id. at 1-2. It also ruled that the gaps in the transcription of the hearing tape were not "so significant as to preclude meaningful review." Id. at 2. It found Khalid's other arguments, which were not identified, unpreserved and without merit. Id.
B. Khalid's Claims and the Current Motion
On November 27, 2000, Khalid filed the amended complaint in this action, which alleges that Farrell violated his rights under the Eighth, Ninth and Fourteenth Amendments. Specifically, Khalid argues that Farrell did not know on October 1, 1999 — the day Farrell requested the extension — that Khalid intended to call Reda (presumably the "employee witness" listed on the Extension Request Form) to testify at the hearing. Complaint, ¶¶ 8 n. 1, 12; see Extension Request Form at 1. Rather, Khalid claims he made the request at the October 4, 1999 hearing itself. Complaint, ¶ 8. The import of this allegation appears to be that Farrell had no basis to postpone the hearing from October 1 to October 4. See Complaint, ¶ 8 n. 1. Thus, Khalid asserts that Farrell "forged documents by requesting an extension" of time in which to conduct the disciplinary hearing and that this resulted in the unlawful continuation of his confinement in the SHU. See Complaint, ¶¶ 12, 16-17. Khalid seeks "$100 dollars for each day in Special Housing as a result of the illegally conducted Tier III/Expungment [sic] from the Plaintiff's institutional records any mention of this incident." Id., § V.
Proceedings against Farrell were stayed pursuant to the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. app. § 521. On October 15, 2002, after his return to civilian status, Farrell filed a motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b). As noted above, Khalid has declined to oppose this motion, which is currently before the Court.
II. DISCUSSION A. Standard of Review
The standard of review on a motion to dismiss under Fed.R.Civ.P. 12(b)(1) or 12(b)(6) is identical. See Moore v. PaineWebber, Inc., 189 F.3d 165, 169 n. 3 (2d Cir. 1999) (citation omitted). "[O]n a motion to dismiss a court must accept all factual allegations as true and draw all inferences in the plaintiff's favor." Levy v. Southbrook Int'l Invs., Ltd., 263 F.3d 10, 14 (2d Cir. 2001) (citing Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994)), cert. denied, 122 S.Ct. 1911 (2002). It is well settled that "dismissal is appropriate if the plaintiff can prove no set of facts that would entitle him to relief." Id. (citing Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998)); accord Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000). The issue is not whether the plaintiff will ultimately prevail but whether the plaintiff is entitled to offer evidence to support his or her claims. See, e.g., Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995), cert. denied, 519 U.S. 808 (1996). In deciding a motion to dismiss under Fed.R.Civ.P. 12(b) the Court must "confine its consideration 'to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.'" Leonard F. v. Israel Disc. Bank of New York, 199 F.3d 99, 107 (2d Cir. 1999) (quoting Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991)); accord Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999). Further, courts are cautioned to interpret the pleadings liberally when considering motions to dismiss the claims of a pro se plaintiff, particularly those alleging civil rights violations. See, e.g., Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001); Flaherty v. Lang, 199 F.3d 607, 612 (2d Cir. 1999).
B. Section 1983 Claims
Khalid brings the instant action under 42 U.S.C. § 1983. Section 1983 provides in pertinent part:
[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
In order to bring a claim under section 1983 the plaintiff "must allege (1) that the conduct 5 complained of was committed by a person acting under color of state law, and (2) that such conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States." Dwyer v. Regan, 777 F.2d 825, 828 (2d Cir. 1985), modified on other grounds, 793 F.2d 457 (2d Cir. 1986); accord Gomez v. Toledo, 446 U.S. 635, 640 (1980); Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993). "It is familiar law that § 1983 does not create substantive rights, but simply provides the procedural mechanism through which a plaintiff may bring a suit for violation of a federal right." Bruneau ex rel. Schofield v. South Kortright Cent. School Dist., 163 F.3d 749, 756 (2d Cir. 1998), cert. denied, 526 U.S. 1145 (1999). Thus, the plaintiff must demonstrate a violation of an independent federal constitutional or statutory right. See, e.g., Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617-18 (1979).
Here, Khalid claims violation of his rights under the Eighth, Ninth and Fourteenth Amendments. The defendant does not dispute that he was acting under color of state law.
C. Exhaustion
Under the Prison Litigation Reform Act ("PLRA"), 110 Stat. 1321-73, as amended, 42 U.S.C. § 1997e(a), "[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." This means the prisoner "must pursue his challenge to the conditions in question through the highest level of administrative review prior to filing his suit." Flanagan v. Maly, 2002 WL 122921, at *2 (S.D.N.Y. Jan. 29, 2002); see also Porter v. Nussle, 534 U.S. 516, 524 (2002) ("[a]ll 'available' remedies must now be exhausted"). The Supreme Court has made clear that "PLRA's 6 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." Nussle, 534 U.S. at 532.
Khalid filed the present action before Nussle was decided. However, "the broad exhaustion requirement announced in Nussle applies with full force" to litigants in such a situation. Espinal v. Goord, 2002 WL 1585549, at *2 n. 3 (S.D.N.Y. July 17, 2002); see generally Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 97 (1993) ("When [the Supreme] Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate [the] announcement of the rule.").
In New York, 7 N.Y.C.R.R. § 701 outlines the Inmate Grievance Program ("IGP") under which prison inmates may file grievances. "[T]he grievance must contain a concise, specific description of the problem and the action requested and indicate what actions the grievant has taken to resolve the complaint." 7 N.Y.C.R.R. § 701.7(a)(1)(i). Once the complaint is filed with the Inmate Grievance Resolution Committee ("IGRC"), "(1) the grievance is investigated and reviewed by the IGRC; (2) if appealed, the Superintendent of the facility reviews the IGRC's determination; and (3) if the superintendent's decision is appealed, the [Central Office Review Committee] makes the final administrative determination." Saunders v. Goord, 2002 WL 31159109, at *3 (S.D.N.Y. Sept. 27, 2002); see 7 N.Y.C.R.R. § 701.7(a)-(c). An inmate has not exhausted his administrative remedies "until he goes through all three levels of the grievance procedure." Hemphill v. New York, 198 F. Supp.2d 546, 548 (S.D.N.Y. 2002).
1. Fourteenth Amendment Due Process Claim
Khalid concedes that he has not filed any grievance relating to the instant claim, let alone fully exhausted his administrative remedies pursuant to the IGP. See Complaint, § II.B. He suggests, however, that his failure to exhaust should be excused because "Tier III's cannot be decided by IGRC." Id., § II.D. Construing his complaint broadly, Khalid may be arguing that resort to the IGP is unnecessary where an inmate files a direct appeal challenging a disciplinary hearing. Because he filed such an appeal, see Appeal of Hearing, at 1-7; see also Supp. Appeal, at 1-5, the argument would be that no additional exhaustion is required.
There is support for such an argument. In Flanagan, the plaintiff brought an action alleging, inter alia, denial of medical and legal needs and violations of due process during his disciplinary hearing. 2002 WL 122921, at *1. On defendant's motion to dismiss, the court found the plaintiff had not exhausted all his administrative remedies with respect to the denial of medical and legal needs because he failed to utilize the IGP. Id. at *1-*2. Accordingly, these claims were dismissed. Id. at *2. With respect to the due process claim, however, the court held that utilization of the grievance process was unnecessary:
To require Flanagan to file an administrative grievance in these circumstances would be absurd, and Congress cannot have intended such a requirement. When an inmate challenges the procedure at a disciplinary hearing that resulted in punishment, he exhausts his administrative remedies by presenting his objections in the administrative appeals process, not by filing a separate grievance instead of or in addition to his ordinary appeal. Pursuit of the appellate process that the state provides fulfills all the purposes of the exhaustion requirement of § 1997a(e), by giving the state an opportunity to correct any errors and avoiding premature litigation. Once the alleged deprivation of rights has been approved at the highest level of the state correctional department to which an appeal is authorized, resort to additional internal grievance mechanisms would be pointless.
Id. at *2. At least one subsequent decision has adopted Flanagan's reasoning. See Samuels v. Selsky, 2002 WL 31040370, at *8 (S.D.N.Y. Sept. 12, 2002) ("Disputes stemming from a disciplinary hearing are properly appealed directly and not through the [IGP].").
This doctrine, however, does not help Khalid. Putting aside the issue of whether Khalid 8 has appealed his disciplinary hearing to the "highest level of the state correctional department," see Flanagan, 2002 WL 122921, at *2, the prisoner at a minimum must exhaust "such administrative remedies as are available." 42 U.S.C. § 1997e(a). New York law recognizes that an appeal of a disciplinary hearing requires, for preservation purposes, that the inmate raise the particular objections he has to the disciplinary hearing either during the hearing itself or on appeal. See, e.g., Tavarez v. Goord, 237 A.D.2d 837, 838 (3d Dep't 1997). Flanagan too contemplates that the prisoner alleging due process violations must "present his objections in the administrative appeals process." 2002 WL 122921, at *2 (emphasis added); see Samuels, 2002 WL 31040370, at *8 ("the underlying point [of Flanagan is] that issues directly tied to the disciplinary hearing which have been directly appealed need not be appealed again collaterally through the [IGP]") (emphasis added).
Here, however, Khalid's administrative appeal did not raise or even allude to his current claim — that is, that his due process rights were violated at the hearing because it commenced two days later than allowed by 7 N.Y.C.R.R. § 251-5.1(a). Instead, he appealed the disposition of the disciplinary hearing on unrelated grounds. See Appeal of Hearing, at 3-7 (claiming lack of substantial evidence; that he was denied a proper interpreter; and that he was given an inaudible tape of the hearing); see also Supp. Appeal, at 1-5 (claiming additionally that Farrell was not impartial). Thus, the prison administration was denied the opportunity to address Khalid's claims in this case — the touchstone of exhaustion. As the Supreme Court has observed:
Beyond doubt, Congress enacted § 1997e(a) to reduce the quantity and improve the quality of prisoner suits; to this purpose, Congress afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case. In some instances, corrective action taken in response to an inmate's grievance might improve prison administration and satisfy the 9 inmate, thereby obviating the need for litigation. In other instances, the internal review might "filter out some frivolous claims." And for cases ultimately brought to court, adjudication could be facilitated by an administrative record that clarifies the contours of the controversy.
Nussle, 534 U.S. at 524-25 (citations omitted); see also Flanagan, 2002 WL 122921, at *2 (excusing failure to exhaust claim of due process violations at disciplinary hearing where plaintiff instead filed administrative appeal and thus gave "the state an opportunity to correct any errors and avoid premature federal litigation"); Saunders, 2002 WL 31159109, at *4 (section 1983 action dismissed where plaintiff's "[v]ague allegations" failed to "provide the internal grievance system with enough information to rectify the problem at the administrative level, which was what the PLRA intended to achieve"); cf. Twitty v. Smith, 614 F.2d 325, 331 (2d Cir. 1979) (goal of exhaustion in habeas context is to "ensure that the federal courts not intrude upon state proceedings unless and until the state courts have been given a fair opportunity to consider and act upon the claims on which the habeas corpus petition is based"). Because Khalid failed to raise the issue he raises here on his administrative appeal, he has not exhausted "such administrative remedies as are available" within the meaning of 42 U.S.C. § 1997e(a).
2. Eighth Amendment Claim
In his complaint, Khalid alleges that Farrell "knowingly and willfully" violated Khalid's constitutional rights by forging documents requesting an extension. The forgery allegedly resulted in the disciplinary hearing not being held within the seven-day time frame required by regulation. See Complaint, ¶¶ 12, 16-17. Khalid claims this two-day delay amounted to cruel and unusual punishment in that it resulted in his unlawful confinement in SHU. Id., ¶ 17.
To the extent this claim should be construed as forming part of Khalid's due process claim, it fails for the same reasons just stated. To the extent it is not part of the due process claim, it should have been the subject of a separate grievance. See 7 N.Y.C.R.R. § 701.2(a) (permitting grievances for any "complaint about the substance or application of any written or unwritten policy, regulation, procedure or rule of the Department of Correctional Services or any of its program units, or the lack of a policy, regulation, procedure or rule"). Khalid has already conceded, however, that he failed to present any grievance at all. See Complaint, § II.B. Thus, this claim must be dismissed.
Even if the merits were to be reached, an Eighth Amendment violation with respect to prison conditions is shown only where the deprivation is so "serious" that the deprivation "'den[ied] the minimal civilized measure of life's necessities.'" Branham v. Meachum, 77 F.3d 626, 630-31 (2d Cir. 1996) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). No such allegation has been made here. Indeed, Anderson v. Coughlin, 757 F.2d 33 (2d Cir. 1985), specifically held that SHU conditions at the Sing Sing correctional facility did not constitute cruel and unusual punishment.
3. Ninth Amendment Claim
This claim too must be dismissed because it was not raised on appeal from the disciplinary hearing and Khalid did not present it as part of a grievance. See Complaint, § II.B.
In any event, the Ninth Amendment refers only to unenumerated rights and claims under section 1983 must be premised on specific constitutional guarantees. See, e.g., Doe by Doe v. Episcopal Social Servs., 1996 WL 51191, at *1 (S.D.N.Y. Feb. 7, 1996). Thus, this claim even if exhausted would have to be dismissed on the merits as well. See, e.g., Rose ex rel. Children's 11 Rights Initiative, Inc. v. Zillioux, 2001 WL 1708796, at *4 (N.D.N.Y. 2001) ("Courts that have addressed the issue of whether the Ninth Amendment can serve as a basis for a § 1983 claim have unanimously held in the negative.") (citing cases).
III. CONCLUSION
Farrell's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) should be granted. To the extent the dismissal is predicated on a lack of exhaustion, the dismissal should be without prejudice. See Morales v. Mackalm, 278 F.3d 126, 128, 131 (2d Cir. 2002) (per curiam) (dismissal for failure to exhaust should be without prejudice to refiling after exhaustion).
Notice of Procedure for Filing of Objections to this Report and Recommendation
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report to file any written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court. Any requests for an extension of time to file objections must be directed to Judge Kaplan, 500 Pearl Street, New York, New York 10007. 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, 155 (1985).