Opinion
No. 01 Civ. 521 (RCC)(RLE)
September 17, 2002
Opinion and Order
Pro se plaintiff, Rafael Paredes ("Plaintiff"), commenced this § 1983 action on January 22, 2001, alleging Eighth Amendment violations by the City of New York, New York City Health and Hospitals Corporation, New York State Department of Correctional Services ("DOGS"), and ten individuals ("Defendants"). On March 9, 2001, this case was referred to Magistrate Judge Ronald L. Ellis. Thereafter, Defendants moved to dismiss this action for failure to exhaust administrative remedies and lack of subject matter jurisdiction over DOGS based on Eleventh Amendment immunity.
By Report and Recommendation dated June 25, 2002 ("Report"), Magistrate Judge Ellis recommended that Defendant's motion to dismiss be granted. Having considered Plaintiff's objections to the Report, the Court nonetheless adopts the Report for the reasons stated below.
1. BACKGROUND
The background of this petition is set forth in detail in the Report and therefore is only briefly recounted herein.
Plaintiff alleges that in January 1999, while incarcerated at Otis Bantum Correctional Center on Riker's Island ("OBCC"), he was forced to pick up and carry a sixty to eighty-pound mattress. Complaint [Compl.] at ¶¶ 37-41. Although he complained of a sharp pain on the right side of his groin area, he was not permitted to go to emergency sick call that day. Id. at ¶¶ 42-45. Approximately two months later, Plaintiff learned that he had a hernia on each side of his groin area and subsequently underwent an operation at Bellevue Hospital. Id. at ¶¶ 47-50. Immediately upon being transferred from Bellevue to West Facility Infirmary ("WFI"), Plaintiff was again ordered to carry his mattress to his cell. Id. at ¶ 51. After much resistance and under threat of physical harm, Plaintiff "dragged his mattress to his cell while enduring extreme physical pain." Id. at ¶¶ 52-56.
On June 1, 1999 Plaintiff was transferred to Bare Hill Correctional Facility in Malone, New York ("Bare Hill"), where he continued to experience severe pain in the groin area. Id. at ¶¶ 59-60. Plaintiff repeatedly complained about the lack of medical treatment he was receiving at Bare Hill but it was not until September 17, 1999 that he learned that he had a pinched nerve in his groin negligently caused during the operation at Bellevue Hospital. Id. at ¶ 61. Plaintiff received a referral for further surgery, but was not operated on again, despite continued pain and many complaints. Id. at ¶¶ 62-63.
On January 22, 2001, Plaintiff filed the instant complaint, while an inmate at Bare Hill, requesting compensatory and punitive damages. Plaintiff stated that he "was unable to avail himself of any administrative remedies at OBCC or WFL because he was transferred within days of the occurrence of the abuse complained of herein . . ." Id. at ¶ 27. He stated further that there were no procedures through which he could complain of his poor medical treatment or staff abuse at Riker's Island or in DOGS. Id. at ¶¶ 28, 30.
Defendants moved to dismiss the complaint, arguing that Plaintiff had failed to exhaust his administrative remedies and that the Court lacked subject matter jurisdiction over DOGS based on Eleventh Amendment immunity. On June 6, 2002, Plaintiff filed a response letter to Defendants' motion. In his letter, Plaintiff conceded that DOGS did have procedures for the submission of complaints and grievances and represented that he did attempt to seek administrative relief, although only after he filed a complaint. Plaintiffs Letter to the Court, dated June 6, 2002 ("Pl. Resp."). Plaintiff also requested leave to amend the complaint to limit his claim to the individuals and events at Piker's Island, and to change venue to the Northern District of New York for the individuals and events at Bare Hill. However, in his Report dated June 25, 2002, Magistrate Judge Ellis recommended that this Court grant Defendants' motion to dismiss. On July 4, 2002, Plaintiff filed a written objection to the Report where he reiterated his requests to seek leave to amend his complaint and change venue to the Northern District of New York.
II. DISCUSSION
The district court applies a de novo standard of review to those parts of the Report to which the Petitioner objects. Here, Petitioner fails to raise any specific objections to the grounds on which Magistrate Judge Ellis recommends dismissal, namely, failure to exhaust administrative remedies and Eleventh Amendment immunity as to DOGS. Instead, he requests leave to amend the complaint in order to include additional individually-named defendants and to limit the allegations to the events at Riker's Island only. He further states however that he is requesting that the case be dismissed without prejudice in order that he may proceed on the amended complaint in the Northern District of New York.
The district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made. The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions.
FED. R. Civ. P. 72(b); see also 28 U.S.C. § 636(b)(1)(c).
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure should be granted only if it appears beyond doubt that "no relief could be granted under any set of facts that could be proved consistent with the allegations." H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50 (1989) (citing Hishon v. King Spalding, 467 U.S. 69, 73 (1984)). Moreover, pleadings prepared by pro se plaintiffs are held to less stringent standards than those prepared by lawyers. Boddie v. Schneider, 105 F.3d 857, 860 (2d Cir. 1997). Pro se plaintiffs are not, however, completely relieved of pleading requirements. In order to avoid dismissal, a plaintiff must do more than plead mere "[c]onclusory allegations or legal conclusions masquerading as factual conclusions." Gebhardt v. Allspect, Inc. 96 F. Supp.2d 331, 333 (S.D.N.Y. 2000) (quoting 2 James Wm. Moore, Moore's Federal Practice ¶ 12.34[1][b] (3d ed. 1997)).
As a preliminary matter, Plaintiff's request for leave to amend and for dismissal without prejudice are inherently contradictory. In any event, although Magistrate Judge Ellis recommended that the complaint be dismissed with prejudice at to DOGS, he recommended that the Court dismiss the complaint without prejudice as to all the other defendants. Moreover, in the instant case, granting plaintiff leave to amend the complaint would be futile because the defect is incurable. Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend is freely given, except where is appears that granting leave to amend is unlikely to productive. See Ruffolo v. Oppenheimer Co., 987 F.2d 129, 131 (2d Cir. 1993) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). The Court therefore adopts the Report in its entirety.
As Magistrate Judge Ellis correctly concluded, the Eleventh Amendment of the United States Constitution bars suits against a state absent the state's consent to such a suit or Congressional abrogation of immunity. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996). Because New York has not waived its immunity and DOGS is a state agency, the complaint is dismissed with prejudice as to DOGS. See, e.g., Bryant v. New York State Dept. of Correction Services Albany, 146 F. Supp.2d 422, 425 (S.D.N.Y. 2001); Ovague v. State, 2000 WL 1231406, at *5 (S.D.N.Y. Aug. 31, 2000).
In addition, Plaintiff concedes that he has failed to exhaust his administrative remedies. Pursuant to the Prison Litigation Reform Act of 1995 ("PLRA"), "[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." 42 U.S.C. § 1997e(a) (West Supp. 2001). "[C]ourts must take care not to frustrate the policy concerns underlying § 1997e(a) by allowing inmateplaintiffs to file or proceed with lawsuits before exhausting administrative remedies." Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001).
In his complaint, Plaintiff conceded that he did not exhaust his administrative remedies but then explained that there are no procedures installed to complain of poor medical treatment or staff abuse at Riker's Island or DOGS. After Defendants filed their motion to dismiss, Plaintiff asserted that he had been mistaken about administrative procedures and explained that he in fact filed a grievance complaint after he had filed the instant complaint. The complaint should be dismissed in order to permit Plaintiff to exhaust his administrative remedies.
III. CONCLUSION
The Court adopts the Report and Recommendation of Magistrate Judge Ellis in its entirety and for the reasons stated above, the Defendants' motion to dismiss is GRANTED WITH PREJUDICE as to DOGS and WITHOUT PREJUDICE at to all the other defendants. Furthermore, plaintiffs motion for leave to amend the complaint and change venue is DENIED. The clerk of the court is ordered to close the files and remove the case from the active docket.