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holding that a prisoner did not satisfy the exhaustion requirement, despite alleged conversations with prison officials about his grievance
Summary of this case from Ramrattan v. SchriroOpinion
No. 11 Civ. 1219 (CM)
10-27-2011
IVAN SWANSTON, Plaintiff, v. DEPARTMENT OF CORRECTIONS, Defendant.
DECISION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
I. INTRODUCTION
Plaintiff Ivan Swanston ("Swanston") brings this action pro se against defendant the New York City Department of Correction ("DOC") alleging a violation of 42 U.S. § 1983 arising out of the George R. Vierno Center's ("GRVC") requirement that he wear certain footwear.
DOC is not a suable entity under the New York City Charter. See Mitchell v. New York City Dep't of Corr., No. 10 Civ. 0292, 2011 WL 503087, at *2 (S.D.N.Y. Feb. 14, 2011). However, in light of Swanston's pro se status and the DOC's willingness to construe the Complaint as against the City of New York (the proper entity), the Court will deem Plaintiff's Complaint to be against the City of New York. See id. --------
DOC now moves to dismiss Swanston's Complaint under Federal Rule of Civil Procedure 12(b)(6), on the grounds that Swanston has failed to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a), the Prison Litigation Reform Act ("PLRA") and for failure to state a Monell claim.
For the reasons that follow, the DOC's motion is GRANTED and the complaint is dismissed.
II. BACKGROUND
On December 4, 2010, Swanston entered GRVC. (Compl. at 3.) At that time, his sneakers were taken from him and he was forced to wear "non-supportive" and "poorly constructed" footwear "with no cushion." (Id.) The required footwear allegedly caused Swanston's feet to blister and bleed, and led to unspecified "numerous medical problems." (Id.)
Swanston consulted Dr. Roberto Deguzman about the problems he was having with his feet. (Id.) Dr. Deguzman prescribed medication for fungus and creams that Swanston alleges had "nothing to do with [his] injuries." (Id.)
Swanston also alleges that he has medical "notes" indicating his need for supportive footwear, but that DOC has refused to assist him. (Id.) However, after complaining to "Prisoners' Rights," Swanston was sent back to the doctor (whether to Dr. Deguzman or another physician is unclear) who wrapped his feet (presumably with gauze or bandages to prevent blistering). (Id.)
Swanston filed a grievance about being forced to wear the required shoes and DOC's failure to provide him with appropriately supportive footwear. (Id. at 4.) When asked to reveal the result of his grievance on the form complaint Swanston filed in this Court, he simply answered "no." (Id.) It is unclear whether this "no" response means that (1) the grievance was denied or (2) Swanston never received a response from DOC.
On the same form complaint, Swanston was asked what steps he took to appeal any denial of his grievance, and to describe all efforts he made to appeal to the highest level of the grievance process. (Id.) He responds that he "spoke to the tier officer, captain; I write a grievance and spoke to grievance officer and went back and forth to medical obtaining numerous medical notes, and I spoke to security." (Id.) Swanston's response suggests that he filed an initial grievance, as opposed to an appeal.
III. DISCUSSION
A. Although Untimely, The Court Will Consider the Instant Motion on the Merits
As an initial matter, DOC has acknowledged that it was served with the Complaint on May 5, 2011. (ECF Dkt. No. 9.) Given that date of service, DOC's time to file an answer or a Rule 12 motion expired on May 26, 2011. See Fed. R. Civ. P. 12(a)(1). However, there is a clear preference in this Circuit for cases to be decided on the merits, rather than by default. Deajess Med. Imagine, P.C. v. Allstate Ins. Co., No. 03 Civ. 3916, 2004 WL 1920803, at *1 (S.D.N.Y. Aug. 27, 2004) (citing Pecarsky v. Galaxiworld.Com, Ltd., 249 F.3d 167, 174 (2d Cir. 2001)).
Here, no default has been entered against DOC, and there is no prejudice to Swanston in considering the motion. The most that Swanston could argue is that the delay is inconvenient, but "delay alone is an insufficient basis for a finding of prejudice....The delay must result in the loss of evidence, create increased difficulties of discovery, or provide greater opportunity for fraud and collusion." Deajess, 2004 WL 1920803, at *3. In the absence of any of those factors, the Court will consider the motion on the merits.
B. Standard of Review on a Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal for "failure to state a claim upon which relief can be granted." To survive a motion to dismiss, "a complaint must allege enough facts to state a claim to relief that is plausible on its face." Harris v. Westchester Co. Medical Ctr., No. 08 Civ. 1128, 2011 WL 2637429, at *2 (S.D.N.Y. Jul. 6, 2011) (citing Starr v. Sony BMG Music Entm't, 592 F.3d 314, 321 (2d Cir. 2010)). In applying this standard, a court must take all "factual allegations to be true and draw all reasonable inferences in the plaintiff's favor." Id. (quoting Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009)). "[R]eview is generally limited to the facts and allegations that are contained in the complaint and in any documents that are either incorporated into the complaint by reference or attached to the complaint as exhibits." Blue Tree Hotels Inv. (Canada), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2004) (citations omitted).
However, courts may also take judicial notice of publicly available documents in deciding a motion to dismiss. See Porrazzo v. Bumble Bee Foods, LLC, No. 10 Civ. 4367, 2011 WL 4552306, at *3 (S.D.N.Y. Sept. 30, 2011). The DOC has attached a copy of its Inmate Grievance Resolution Program ("IGRP") procedures to its motion papers (see Exh. B attached to the Decl. in Support of Motion to Dismiss) (hereinafter "IGRP Procedures"), and the procedures are publically available online. Therefore, the Court will take judicial notice of the procedures in determining whether Swanston has exhausted his administrative remedies.
Finally, "A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). A court must interpret pro se filings "to raise the strongest arguments that they suggest." Harris, 2011 WL 2637429, at *3 (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006)).
C. Swanston Has Failed to Exhaust His Administrative Remedies
The PLRA provides that, "No 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." See 42 U.S.C. § 1997(e) (2006) (emphasis added). The 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." George v. Morrison-Warden, No. 06 Civ. 3188, 2007 WL 1686321, at *2 (S.D.N.Y. Jun. 11, 2007) (citing Porter v. Nussle, 534 U.S. 516, 532 (2002)). Furthermore, "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." Id. at *3 (emphasis in original) (quotations omitted).
With that framework in mind, the question is a simple one: did Swanston exhaust all avenues of appeal available to him under the IGRP procedures? The procedures provide a four-step process:
(1) First, an inmate must submit a complaint to the Inmate Grievance Resolution Committee ("IGRC") within ten days of the event the inmate wishes to grieve. (IGRP Procedures at 8.)
(2) Following receipt of a written decision from the IGRC, the inmate then has five days to file an appeal to the Commanding Officer with the Grievance Office. (Id. at 10.)
(3) Once the inmate receives the written decision of the Commanding Officer (or designee), the inmate has five days to appeal the decision to the Central Office Review Committee ("CORC") by filing an appeal with the Grievance Office. (Id. at 12.)
(4) Finally, within five days after the receipt of the CORC's decision, the inmate can
the Grievance Office. Once the Commissioner of the BOC renders a decision, the administrative grievance process terminates. (Id. at 13-14.)
Extending Swanston every benefit of the doubt, it is clear that he has not exhausted his administrative remedies. He alleges that he filed a grievance with the Grievance Office. In response to the question of what steps he took to appeal his initial grievance, Swanston simply says that he filed a grievance. A grievance is not an appeal. That leaves three levels of appeal in the administrative process which Swanston has failed to exhaust. It is unclear whether Swanston's alleged conversations with the tier officer, captain, and "security" occurred after his initial grievance was denied (or ignored). However, none of these correlates with the process set forth in the IGRP procedures. Therefore, the Court concludes that Swanston has not exhausted his administrative remedies. Swanston does not allege, and has offered no evidence tending to suggest, that he was in any way prevented or impeded from exhausting his administrative remedies, or misled into thinking he did not need to do so. I thus dismiss his Complaint. See Prescott v. Annetts, No. 09 Civ. 4435, 2010 WL 3020023, at *3 (S.D.N.Y. July 22, 2010) ("If a plaintiff's grievance has not been appealed to and decided by the highest body in the administrative process, the plaintiff has failed to exhaust his administrative remedies and his claims are properly dismissed.").
Because dismissal for failure to exhaust administrative remedies disposes of the present motion, this Court need not reach the DOC's contention that Swanston has failed to state a Monell claim.
IV. CONCLUSION
For all of the above reasons, the Complaint is dismissed.
The Clerk of the Court is directed to close this case. Dated: October 27, 2011
/s/_________
U.S.D.J.