Opinion
01 Civ. 6460 (SAS)
June 26, 2002
Plaintiff (Pro Se): Andrew Martin 98-A-3137 Attica Correctional Facility Attica, N.Y. 14011-0149.
For Defendants: Donald Nowve Assistant Attorney General Office of the Attorney General of the State of New York Litigation Bureau New York, N.Y. 10271-0332.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
On June 1, 2001, Andrew Martin, proceeding pro se, brought this action pursuant to section 1983 of Title 42 of the United States Code against Corrections Officers A. Fusco, D. Mink, A. Belton and Sergeant Schwartzman ("defendants") for sexual and physical assault. See Complaint ("Compl.") ¶ 5. Defendants now move to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground that plaintiff failed to exhaust all available administrative remedies. See Memorandum of Law in Support of Defendants' Motion to Dismiss ("Def. Mem.") at 1. For the reasons discussed below, the motion is granted.
II. FACTUAL BACKGROUND
In August 1998, plaintiff was an inmate at the Green Haven Correctional Facility ("Green Haven") in Dutchess County, New York. See Compl. ¶ 5. On August 14, 1998, defendants conducted a "pat frisk search" on plaintiff. Id. Defendants then performed a strip search on plaintiff after a "metal scanner . . . started to alarm" during the initial search. Id. Plaintiff claims that defendants proceeded to physically and sexually assault him during the strip search, causing a number of significant injuries. See id. ¶¶ 5-13. Green Haven medical personnel examined and treated plaintiff's injuries. See id. ¶ 7. Plaintiff claims that he continues to suffer from a number of these injuries. See id. ¶¶ 10-12
Plaintiff was treated by a registered nurse, Mary Powell, for a small laceration on his shoulder and "slight soft tissue edema" before being returned to his dell. See 8/14/00 Report of Inmate Injury, Attachment to Compl.
On August 20, 1998, plaintiff wrote a letter to Deputy Superintendent of Security Schneider regarding the alleged abuse. See 9/14/98 Investigation Report from R. Morton ("Morton Report"), Captain at Green Haven, Attachment to Compl., at 1. On August 28, 1998, plaintiff wrote a similar letter to Glenn S. Goord, then Commissioner of the New York State Department of Correctional Services ("DOCS"). See 8/28/98 Letter to Commissioner Glenn S. Goord, Attachment to Compl., at 1-4 (original unnumbered). A few weeks later, plaintiff received a letter from Captain Morton, advising him that an investigation into his complaint revealed that "no further action [was] warranted in this matter." Morton Report at 2. On November 19, 1998, plaintiff filed an "Inmate Grievance Complaint" (the "Grievance") reporting the assault. See 11/19/98 Grievance, Attachment to Compl. Plaintiff received a response from Green Haven Superintendent Christopher Artuz two weeks later explaining that plaintiff's "allegations ha[d] been found to be unsubstantiated[,]" and his "[g]rievance [was] denied." Appeal Report. Plaintiff did not appeal his Grievance to the Central Office Review Committee ("CORC"). See Affidavit of Thomas G. Eagen ("Eagen Aff."), Director of the Inmate Grievance Program for DOCS, Ex. B to Affirmation of Donald Nowve, Assistant Attorney General, in Support of Defendants' Motion to Dismiss, ¶ 6. On June 1, 2001, plaintiff filed a Complaint seeking $1,000,000 for "pain and suffering, mental anguish, permanent disability and future medical expenses." Compl. ¶ 14.
The Grievance does not appear to have been timely filed because it was received over three months after the alleged incident occurred. See N.Y. Comp. Codes R. Regs. tit. 7, § 701.7(a)(1) (requiring an inmate to "submit a complaint to the Grievance Clerk within 14 calendar days of an alleged occurrence"). However, "[e]xceptions to this time limit may be approved by the [Inmate Grievance] supervisor based on mitigating circumstances." Id. Because the, Grievance was investigated and appealed to the superintendent, I will assume that plaintiff's case qualified as such an exception. See 12/3/98 Report on the Appeal to Superintendent C. Artuz (the "Appeal Report").
III. LEGAL STANDARD
A motion to dismiss should be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000) (internal quotation marks and citation omitted). "At the Rule 12(b)(6) stage, `[t]he issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.'" Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998) (internal quotation marks omitted)). The task of the court in ruling on a Rule 12(b)(6) motion 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.'" Sims, 230 F.3d at 20 (quoting Ryder Energy Distrib. Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984) (internal quotation marks omitted)).
When deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must "take as true all of the allegations contained in plaintiff's complaint and draw all inferences in favor of plaintiff." Weinstein v. Albright, 261 F.3d 127, 131 (2d Cir. 2001). Courts should "include in this analysis not only the assertions made within the four corners of the complaint itself, but also those contained in documents attached to the pleadings or in documents incorporated by reference." Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001)
Because "most pro se plaintiffs lack familiarity with the formalities of pleading requirements, [courts] must construe pro se complaints liberally, applying a more flexible standard to evaluate their sufficiency." Lerman v. Board of Elections in the City of New York, 232 F.3d 135, 140 (2d Cir. 2000) (citing Hughes v. Rowe, 449 U.S. 5, 9-10 (1980) and Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). Finally, courts must remain "mindful of the care exercised in this Circuit to avoid hastily dismissing complaints of civil rights violations." Gregory, 243 F.3d at 691.
IV. ANALYSIS
The Prisoner Litigation Reform Act ("PLRA") states that "no action shall be brought with respect to prison conditions under section 1983 of this title . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). This 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, 122 S.Ct. 983, 992 (2002). Inmates must therefore exhaust all administrative remedies, at all levels of appeal, in order for their claims to survive a motion to. dismiss. See Hemphill v. New York, 198 F. Supp.2d 546, 548 (S.D.N.Y. Apr. 19, 2002).
DOCS has created a three-tiered grievance process for all prisoner complaints. See N.Y. Comp. Codes R. Regs. tit. 7, § 701.7. First, an inmate must file a grievance with the Inmate Grievance Resolution Committee (the "IGRC"), which is composed of fellow inmates and various prison officials. See id. § 701.7(a). Second, if the inmate is dissatisfied with the IGRC decision, he must appeal to the superintendent of the facility. See id. § 701.7(b). Third, if the inmate does not receive a favorable decision from the superintendent, he must appeal to the Central Office Review Committee ("CORC"). See id. § 701.7(c). The superintendent's response at the second level must provide "simple directions on how this decision may be appealed" to the CORC. Id. § 701.7(b)(5). The grievance process is then complete and the inmate, if still dissatisfied, may bring a complaint in the appropriate court. See Hemphill, 198 F. Supp.2d at 548.
Plaintiff presents some evidence of compliance with the required grievance procedures. See Compl. ¶ 11(C)(1). Martin filed a grievance which was subsequently appealed to Superintendent Artuz. See id.; see also Appeal Report. Superintendent Artuz's investigation found Martin's allegations "to be unsubstantiated[,]" and the grievance was denied. Appeal Report. Included at the bottom of the superintendent's report were the requisite "simple directions" instructing the inmate how to appeal to the CORC. See id. Martin failed to complete this form, and he does not allege that he appealed the decision to the CORC. See id. Compl. ¶ II(C)(1). Thomas Eagen, Director of DOCS's Inmate Grievance Program, testified that Martin never filed an appeal with the CORC. See Eagen Aff. ¶ 6. Defendants thus argue that plaintiff failed to completely exhaust the administrative remedies available to him before bringing this federal action. See Def. Mem. at 4-5. I agree. Because plaintiff failed to appeal to the CORC in accordance with the third level of the grievance process, his Complaint must be dismissed under Porter v. Nussle for failure to exhaust administrative remedies.
These directions require a reason for the appeal and the grievant's signature before the appeal can be processed by the Inmate Grievance Clerk. See Appeal Report.
The same result has been reached by various lower courts applying Porter. For example, in Concepcion v. Commissioner of Dep't of Corr. Servs., No. 97 Civ. 1569, 2002 WL 1186180, at *1 (S.D.N.Y. May 31, 2002), Judge Miriam Cedarbaum dismissed an inmate's suit "because he did not appeal his grievance to the CORC." See also Kearsey v. Williams, No. 99 Civ. 8646, 2002 WL 1268014, at *2 (S.D.N.Y. June 6, 2002) (holding that when an inmate "has failed to exhaust his available administrative remedies, including all appellate remedies, dismissal is mandatory") (citing Waters v. Schneider, No. 01 Civ. 5217, 2002 WL 727025, at *1 (S.D.N.Y. Apr. 23, 2002) (emphasis added)).
V. CONCLUSION
For the foregoing reasons, plaintiff's claims are dismissed for failure to exhaust available administrative remedies. The Clerk of the Court is directed to close this case.