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finding that even if the prison fails to respond, the inmate must still pursue all remaining steps in order to exhaust
Summary of this case from Allah v. Commonwealth of VirginiaOpinion
03 Civ. 5342 (RWS).
November 1, 2005
TIMOTHY WILLIAMS, Plaintiff Pro Se, Elmira Correctional Facility, Elmira NY.
HONORABLE MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, Attorneys for Defendant City of New York, And Individual Defendants, New York, NY, By: HILLARY A. FROMMER, ESQ., Of Counsel.
OPINION
Defendants The City of New York (the "City"), Assistant District Attorney Ginger James ("ADA James"), Assistant District Attorney Schlomeit Metz ("ADA Metz"), Chief Ocasio, Robert Davoren, Chief of Department New York City Department of Correction ("Chief Davoren"), Martin Horn, Commissioner of the New York City Department of Correction ("Commissioner Horn"), Migdalia Figueroa ("M. Figueroa"), Detective Judith Sena ("Det. Sena"), Warden Frank Squillante ("Warden Squillante"), Correction Officer Reed ("Officer Reed"), Captain Johnson, Correction Officer Fernandez ("Officer Fernandez"), Captain Biggs, Captain Williams, and Correction Officer Hayes ("Officer Hayes") have moved to dismiss the Second Amended Complaint ("SAC") of pro se plaintiff Timothy Williams ("Williams"). For the reasons set forth below the motion is granted in part and denied in part.
This litigation as is set forth below has been difficult and prolonged, perhaps as a consequence of Williams's pro se status and any complications arising out of his bipolar disorder. (See SAC, ¶ 22).
Prior Proceedings
Williams commenced this action on July 21, 2003 pursuant to 42 U.S.C. § 1983, against thirty-one municipal defendants alleging that each and every one of them violated his constitutional rights between October 2000 and October 2003. Williams submitted his original complaint to the Pro Se Office of the United States District Court for the Southern District of New York on February 6, 2003. That action was dismissed, and Williams was granted leave to replead, in part, by the Honorable Michael B. Mukasey in an order dated July 21, 2003 (the "July 21 Order"). Williams filed an amended complaint on August 21, 2003. Williams then sought and received leave of court to file a second amended complaint, which was filed on March 26, 2004. The SAC alleged that the City of New York, various New York City Police Officers, Assistant District Attorneys, and employees of the New York City Department of Correction violated Williams's civil rights by causing him physical injuries, denying him medical attention, prosecuting him for criminal offenses, depriving him of his property while incarcerated at the Rikers Island Correctional Facility, and transferring him among housing facilities within the Department of Correction in retaliation for conduct in which Williams engaged.
Williams's time to serve defendants was extended finally to November 21, 2004. The claims against the following named defendants are dismissed without prejudice for failure to serve: Fraser, Cooney, Mulvaney, Cole, Hines, Brophy, Slattery, Sapinza, McNair, Boyd, Brown, Welch, DiBernadino, and Fallon. Although Elie-Pierre has not been served, the same claim is alleged as against Det. Sena, and such claim is barred by the statute of limitations, as will be discussed subsequently.
The claims against Sapinza, McNair and Boyd are alleged to be based upon the confiscation of property. Because these claims are barred by the July 21 Order, they are dismissed with prejudice, as will also be discussed subsequently.
The instant motion was marked fully submitted on March 30, 2005.
The Rule 12(b)(6) Standard
In considering a motion to dismiss pursuant to Rule 12(b)(6), Fed.R.Civ.P., the Court should construe the complaint liberally, "accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor." Chambers v. Time Warner, 282 F.3d 147, 152 (2d Cir. 2002) (citing Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001)). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L.Ed.2d 90, 94 S.Ct. 1683 (1974)). Dismissal is only appropriate when "it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him or her to relief." Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000).
The Claim Against The City Is Dismissed
Williams's claim against the City is that he was riding in a bus operated by the New York City Department of Correction and sustained injuries when the bus had a motor vehicle accident on two separate occasions, on January 8, 2002 and December 20, 2002. (See SAC, ¶¶ 79, 103, 144). Williams alleges that the City was aware that the bus was not equipped with a seatbelt and that the City failed to remedy the conditions.
In Carrasquillo v. The City of New York, et al., 324 F. Supp. 2d 428 (S.D.N.Y. 2004), the plaintiff claimed that he was riding on a New York City Department of Correction bus without a seatbelt when that bus had a motor vehicle accident. Plaintiff claimed that he sustained injuries as a result of that accident and brought an action against the City alleging that the City was responsible for the bus accident and plaintiff's injuries by "failing to provide safe transportation by forcing handcuffed inmates to ride without seatbelts." 324 F. Supp. 2d at 434. The court rejected the plaintiff's claims against the City holding that,
auto accidents do not, in and of themselves, give rise to federal causes of action. Individuals do not have a constitutional right (1) to be free from a government employee's negligence, even if it causes an injury, (2) to have the government protect them from such an injury, or (3) to have the government investigate the cause of such an injury. Plaintiff's claims stemming solely from the circumstances of the bus accident are therefore not actionable under 42 U.S.C. § 1983.Id. at 436.
The court also held that the plaintiff could not save his claim against the City by alleging that the unidentified driver of the bus was driving recklessly in deliberate indifference to the health and safety of his passengers. The court concluded that a deliberate indifference claim applies to an individual's "medical needs, in violation of the Eighth Amendment proscription against cruel and unusual punishment. It does not cover vehicular accidents that expose a plaintiff to the risk of injury." Id. at 437. Finally, the court concluded that the plaintiff's claim that the City was liable for failing to provide him with a seatbelt does not constitute a constitutional violation under § 1983. Id. (citing Spencer v. Knapheide Truck Equip. Co., 183 F.3d 902 (8th Cir. 1999) (Court of Appeals determining that municipality's decision to use patrol wagons without seatbelts was lawful) and Dexter v. Ford Motor Co., 92 Fed. Appx. 637, 641 (10th Cir. 2004) (Court of Appeals holding that "a failure to seatbelt does not, of itself, expose an inmate to risks of constitutional dimensions")).
Here, adopting the reasoning in Carrasquillo, the Court concludes that Williams has not alleged a viable federal claim against the City.
The Claims Against Chief Davoren, Chief Ocasio, And Commissioner Horn Are Dismissed
Section 1983 imposes liability only upon a defendant who personally "subjects, or causes to be subjected" any person to the deprivation of any federal right. Accordingly, "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991);McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977),cert. denied, 434 U.S. 1087 (1978). A civil rights complaint "must contain specific allegations of fact which indicate a deprivation of constitutional rights; allegations which are nothing more than broad, simple and conclusory statements are insufficient to state a claim under § 1983." Vishevnik v. Supreme Court of the State of New York, 99 Civ. 3611 (RWS), 1999 WL 796180, at *2 (S.D.N.Y. Oct. 6, 1999) (quoting Alfaro Motors Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987)) (court dismissing complaint where plaintiff failed to allege how the defendant was personally involved in the deprivation of his constitutional rights).
In fact, "the personal involvement of a defendant must be pleaded with specific factual support." Vishevnik, 1999 WL 796180 at *4. The courts have determined that a plaintiff's failure to plead such specificity in a § 1983 action will result in dismissal of the action. "Where the complaint names a defendant in the caption but contains no allegations indicating how the defendant violated the law or injured the plaintiff, a motion to dismiss the complaint in regard to that defendant should be granted." McCoy v. Goord, 255 F. Supp. 2d 233, 258 (S.D.N.Y. 2003); Husowitz v. American Postal Workers Union, 190 F.R.D. 53, 59 (E.D.N.Y. 1999) (complaint containing no allegations that defendants named in caption were personally involved in alleged incident was "fatally defective on its face" and was dismissed).
Here, although Williams had named Chiefs Davoren and Ocasio and Commissioner Horn in the caption, the SAC does not allege that any of these three defendants had any personal contact with or involvement in Williams's incarceration or were personally involved in any alleged constitutional violation. Therefore, as in Morabito, the SAC against those named defendants is dismissed with prejudice.
The Claim Against Det. Sena Is Dismissed
The statute of limitations applicable to an action brought under 42 U.S.C. § 1983 is three years. Owens v. Okure, 488 U.S. 235, 250, 109 S. Ct. 573 (1989); see also Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 331-32 (2d Cir. 1997) ("The statute of limitations that governs a § 1983 action arising in New York is the three-year statute of limitations applicable to a personal injury action."). Under federal law, the statute of limitations begins to run once the plaintiff knows of the injury on which his claim is based. Cornwell v. Robinson, 23 F.3d 694, 703 (2d Cir. 1994); see also Veal v. Geraci, 23 F.3d 722, 724 (2d Cir. 1994) (holding that § 1983 claim accrues "when the alleged conduct has caused the claimant harm and the claimant knows or has reason to know of the allegedly impermissible conduct and the resulting harm").
Pursuant to Title 42 U.S.C. § 1988 (2002), the federal courts are instructed to borrow "state law limitations provisions where doing so is consistent with federal law." Owens, 488 U.S. at 239. This approach has, by now, been well-established in the Second Circuit, and for purposes of a § 1983 action brought in this district, the applicable limitations period is provided by the State of New York's three-year "residual statute of limitations for claims of personal injury." Id. at 238, 251;Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir. 1997); New York Civil Practice Law and Rules, § 214(5) (McKinney 2002). Furthermore, our Circuit has held that dismissal of a complaint is appropriate "if it appears from the face of the complaint that the action is barred . . . by the statute of limitations." Baker v. Cuomo, 58 F.3d 814, 818-19 (2d Cir. 1995), overruled on other grounds by Baker v. Pataki, 85 F.3d 919 (2d Cir. 1996).
Here the SAC has alleged that Det. Sena denied him food, medications, and medical attention when he was arrested on October 16, 2000. Williams, however, did not commence any action against Det. Sena until the SAC was filed on March 26, 2004, over five months after the statute of limitations expired. Williams's original complaint and first amended complaint do not contain any allegations against Det. Sena nor is she named as a defendant in the caption. Williams's claims in the SAC against Det. Sena are time-barred and are dismissed with prejudice.
The July 21 Order Is Enforced And The Claims Against ADAs James And Metz, M. Figueroa, Officer Reed And Warden Squillante Are Dismissed
The July 21 Order dismissed this action in its entirety against ADA Metz, Warden Squillante and M. Figueroa; all of Williams's claims regarding the alleged deprivation of his property; and any claims against individual defendants where Williams failed to allege their personal involvement in alleged constitutional violations. Leave to replead against any of these specific individual defendants, or leave to replead the particular claims, was not granted. Williams's leave to amend the complaint was permitted only "in order to detail his allegations of assault, deliberate indifference to medical needs, retaliatory transfer, and access to courts." The SAC, however, contains allegations against individual defendants already dismissed from this action and for claims already rejected by the Court. The July 21 Order requires dismissal of these claims and as against these defendants with prejudice.
The July 21 Order dismissed this action against ADA James and ADA Metz on the grounds that they are "immune from civil suits for acts committed within the scope of their official duties where the challenged activities are not investigative in nature, but rather are `intimately associated with the judicial phase of the criminal process.'" Furthermore, it was determined that dismissal against defendants ADA James and ADA Metz was proper pursuant to 28 U.S.C. § 1915(e)(2)(b)(iii), which provides that,
Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . (b) the action or appeal . . . (iii) seeks monetary relief against a defendant who is immune from such relief.
In the SAC, Williams alleged that after he met with ADA James to discuss pressing charges against correction officers, no charges were ever brought. "The protection [of absolute immunity] extends to the decision to prosecute as well as the decision not to prosecute." Fields v. Soloff, 920 F.2d 1114, 1119 (2d Cir. 1990); Schloss v. Bouse, 876 F.2d 287, 290 (2d Cir. 1989); Fox v. City of New York, No. 03 Civ. 2268 (FM), 2004 WL 856299, at *36 (S.D.N.Y. Apr. 16, 2004). Furthermore, Williams has alleged that the ADA "refused to investigate, assist, or help plaintiff in any way to avoid future attacks and harassment." (See SAC, ¶ 90). These allegations in the SAC establish ADA James did not act in an investigative capacity, but rather solely as an advocate.
Similarly, the SAC fails to state a claim against ADA Metz who was responsible for prosecuting Williams on the charges of promoting prison contraband and obtaining a conviction against Williams for the crime of promoting prison contraband in the First Degree. (See SAC, ¶ 120). Any steps taken or decisions made by ADA Metz in prosecuting Williams was conduct "intimately associated with the judicial phase of the criminal process,"Imbler v. Patchman, 424 U.S. 409, 430, 96 S.Ct. 984, 995 (1976), and ADA Metz is immune from suit for any such conduct or decisions. As the July 21 Order provided, ADA Metz cannot be sued for prosecutorial action, and the SAC is dismissed against ADA Metz with prejudice.
The July 21 Order dismissed the action against M. Figueroa and did not grant Williams leave to replead against her. Williams's initial complaint and first amended complaint contained allegations that M. Figueroa was involved in depriving him of his property. The July 21 Order dismissed all claims based on the denial of property, specifically including those claims against M. Figueroa, stating that Williams's "claim for deprivation of property is not cognizable in federal court if the state courts provide a remedy for the deprivation of that property," and Williams failed to "state any attempt on his part to take advantage of state remedies by filing a claim in the New York State Court of Claims." The SAC contains the same allegations against M. Figueroa as those which have already been dismissed and determined to be not cognizable in this Court, (see SAC, ¶ 71), and consequently this action is dismissed against M. Figueroa with prejudice.
The July 21 Order also dismissed any and all claims regarding Williams's allegations that he was denied his property. The SAC has alleged claims against Officer Reed on the grounds that he confiscated Williams's property. (See SAC, ¶¶ 107-08). However, there is no allegation that Williams filed a claim in the New York State Court of Claims and exhausted the remedies afforded to him in state court. Therefore, the claims against Officer Reed are dismissed with prejudice.
The SAC also has alleged that "[d]efendant Reed assaulted plaintiff, and plaintiff was rushed to Elmhurst Hospital's emergency room." (See Emergency Dept. Patient Discharge Instructions, dated June 24, 2003). The SAC further states, "[p]laintiff sustained devastating injuries to his low-back and neck, requiring an M.R.I. and E.M.G. testing procedure." (See SAC, ¶ 107). Williams has failed to comply with the requirements set forth in the July 21 Order for amending the complaint to state allegations of assault.
The July 21 Order required that Williams "must specify how many assaults occurred, when they occurred, and who was responsible for the alleged assaults by providing a clear chronological narrative as to what exactly happened. Plaintiff must give dates of all relevant events, names of all relevant persons and a description of what actually occurred." However, the sole allegation against Officer Reed in the SAC is that "defendant Reed assaulted plaintiff." (See SAC, ¶ 107). Under the July 21 Order, this allegation fails to state a claim.
It must also fail because the allegations are unsupported by Williams's medical records, to which he specifically referred in the pleading. Williams's medical records show that at no time did he receive any medical treatment for any alleged injuries on May 30, 2003 as alleged. Williams has failed to comply with the July 21 Order and has failed to state any claim against Officer Reed for the use of force or any other constitutional violation. The SAC is dismissed with prejudice against Officer Reed.
The July 21 Order also dismissed this action without leave to replead against Warden Squillante and stated that,
since plaintiff names "William Fraser [former Commissioner of the New York City Department of Corrections,' `Warden D. Squillante,' `Rudolph Giuliani,' and the `Inspector General, N.Y.C.' without alleging their personal involvement, and [since] liability for damages in a § 1983 action may not be based on the respondeat superior or vicarious liability doctrines, Monell, 436 U.S. at 691, the complaints as to these three defendants cannot sustain a cognizable claim for relief and are dismissed.
In response, Williams sought to allege in the SAC that Warden Squillante was personally involved in violating Williams's constitutional rights. However, the sole allegation against him is that "while detained at the N.I.C. jail in November and December of 2001, Warden Frank Squillante received rumors that plaintiff was cooperating with the authorities. Warden Squillante ordered his security staff not to transfer plaintiff to the `box' (to serve the 90-days), but have plaintiff `taught a lesson.'" (See SAC, ¶ 76).
This new claim against Warden Squillante is barred by the July 21 Order and fails to state any claim against Warden Squillante of violation of Williams's constitutional rights. If construed as a claim of deliberate indifference to his medical needs or retaliation, Williams was obligated under the July 21 Order to "provide a clear and concise statement regarding his allegation . . . that he was denied medical attention." Williams has failed to provide the additional and necessary details and has not adequately alleged a claim that Warden Squillante violated Williams's constitutional rights because Williams was housed in two separate facilities, N.I.C. and G.R.V.C., in November and December of 2001. This action against Warden Squillante is dismissed with prejudice.
The Claims For Denial Of Medical Attention On January 8 And December 20, 2002 Are Dismissed
The July 21 Order states that, the allegation that defendants showed deliberate indifference to plaintiff's medical needs must be accompanied by allegations that defendants intentionally withheld needed medical care rather than engaged in mere negligence or inadvertently failed to provide adequate medical care. . . . To successfully show deliberate indifference, plaintiff must succinctly and clearly detail in chronological order, providing dates, his allegations of neglect by providing the names and titles, if known, of individuals he claims denied him medical attention, the steps he took to receive treatment, and how he was denied that treatment.
The SAC states that following the January 8, 2002 accident Williams was seen by an unknown physician's assistant at the Manhattan Court Clinic. (See SAC, ¶ 79). The SAC also alleges that on December 20, 2002, Williams was transported to Downtown Beekman Hospital after the alleged December 20, 2002 accident. (See SAC, ¶ 103).
The records cited by Williams establish that he received medical treatment. He has failed to comply with the July 21 Order by failing to state with specificity what and how medical care was deliberately withheld, what steps he took to obtain medical treatment, and how that treatment was denied. The claim based on denial of medical treatment on January 8 and December 20, 2002 is dismissed with prejudice.
The Claim Alleging Assault On February 19, 2002 Is Dismissed
The SAC alleges that on February 19, 2002, Williams was assaulted by an unknown correction officer while being escorted to the facility law library. (See SAC, ¶ 81). An Injury to Inmate Report attached as Exhibit J to the SAC states that,
On Tuesday February 19, 2002, at approximately 110 hrs inmate Williams claims his wrist was scratched inadvertently while being escorted back from the law library. That report further shows that plaintiff did not sustain any injuries and was returned to his housing area. Inmate Williams claims this happened on Wednesday February 12, 2002.
Williams signed the report and dated it on February 19, 2002.
On a Rule 12(b)(6) motion, "the complaint is deemed to include any written instruction attached to it as an exhibit or any statements or documents incorporated into by reference."Chambers v. Time Warner, Inc., 282 F.3d 147 (2d Cir. 2002) (quoting International Audtiotext Network, Inc. v. AM. Tel. Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (per curium)); see also Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993) (court may consider documents attached to complaint as exhibit or incorporated by reference; matters of which judicial notice may be taken; documents in plaintiff's possession or which plaintiff had knowledge and relied on in bringing suit). Moreover, "even where a document is not incorporated by reference, a court may nevertheless consider it where the complaint `relies heavily upon its terms and effect' which renders the document `integral' to the complaint."Chambers, 282 F.3d at 153 (internal citations omitted).
The Injury to Inmate Report refutes any constitutional injury and the claim based on an alleged assault on February 19, 2002 is dismissed.
The Claims Alleging Assault And Denial Of Medical Treatment On March 15, 2002, March 16, 2002, And March 19, 2002 Are Dismissed
The SAC alleges that Captain Johnson and Captain Williams "gave inmates cigarettes to assault plaintiff," (see SAC, ¶ 83), and that Williams sustained injuries and was denied medical treatment for those injuries. (See id. at ¶ 83). Williams attached three Injury to Inmate Reports dated March 15, March 16, and March 19, 2002. (See SAC ex. K1, L2, L3). Those documents, however, fail to contain any evidentiary support whatsoever for Williams's allegations against Captains Johnson and Williams. The Injury to Inmate Reports establish that Williams received medical attention immediately after each alleged incident. Williams has failed to meet the pleading requirements set forth in the July 21 Order as discussed above. The claims based upon assault, injury and denial of medical treatment are dismissed.
The Motion To Dismiss The Claim Based Upon Departmental Records Is Denied
The SAC alleges that on May 2, 2003 Williams was assaulted and sodomized by correction officers at the Brooklyn House of Detention and then denied medical attention. (See SAC, ¶ 105). According to the defendants, the records of Correctional Health Services for Williams contradict these allegations.
These records are not cited by Williams and while they might be dispositive in a summary judgment context, they present a factual dispute which cannot be resolved on this motion. Chambers, 282 F.3d at 154.
Similarly, the SAC has alleged that between August 15, 2001 and December 10, 2001, "in retaliation for reporting corruption, plaintiff was transferred to Queens House of Detention, to the Brooklyn House of Detention of Men, and back to the Queens House of Detention." (See SAC, ¶ 72). The records of the Department of Correction indicate that Williams was housed in N.I.F. facility during the entire month of August 2001, was transferred from N.I.C. to the Brooklyn House of Detention on October 10, 2001, and then transferred to Queens House of Detention on October 16, 2001 and never housed in the Queens House of Detention. Again these records were not cited by Williams and could be dispositive, but they present a factual issue that cannot be resolved on this motion. Chambers, 282 F.3d at 154.
The SAC has also alleged that during the morning shift of April 30, 2002, Williams was assaulted by inmates and kicked by Correction Officers Fernandez, Hayes and Williams. (See SAC, ¶ 86). Williams attached an Inmate to Injury Report. The Department of Corrections indicates that Fernandez, Hayes and Williams did not work the morning shift on April 30, 2002, but rather worked a tour from 3:00 p.m. until 11:00 p.m., as evidenced by their time cards for that day. These records and the investigation report of the incident raise a factual issue which cannot be resolved on this motion.
The Defendants also have sought dismissal on the grounds that Williams has violated Rule 11, Fed.R.Civ.P., by making false claims. Williams's pro se status precludes a finding of the necessary willfulness.
The Claims Of Assault Against Defendants Johnson, Fernandez, Williams And Hayes Are Dismissed
The SAC has also alleged that on April 29, 2002 and April 30, 2002 during both the morning and evening shifts, Williams was approached by Fernandez, Hayes, Hines, Cole, Williams, and Johnson and questioned about whether he was engaged in particular alleged conduct. (See SAC, ¶ 86). This allegation fails to allege that defendants Fernandez, Hayes, Williams, or Johnson engaged in any conduct in violation of Williams's constitutional rights, and it is therefore dismissed.
The Claim Against Biggs Is Dismissed
The SAC has alleged that on December 29, 2002, Williams was approached by Captain Biggs and that Biggs allegedly questioned Williams as to whether he was cooperating with authorities, directed him to cease filing grievances and calling counsel, and threatened to "set him up" with other detainees. (See SAC, ¶ 77). Nowhere in that paragraph does Williams allege that Biggs violated his constitutional rights or engaged in any conduct that is actionable as a matter of law under 42 U.S.C. § 1983. In order to hold Biggs liable for any constitutional violation, Williams must plead specific "allegations of fact which indicate a deprivation of constitutional rights; allegations which are nothing more than broad, simple and conclusory statements are insufficient to state a claim under § 1983." Vishevnik v. Supreme Court of New York County, 1999 WL 796180 at *2. Because Williams has had three opportunities to state a claim against Captain Biggs and has failed to do so adequately, his action against Captain Biggs is dismissed with prejudice.
The Claims Of Retaliatory Transfer Between October 2000 And December 2001 Are Dismissed
The Prisoner Litigation Reform Act (" 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 . . . until such administrative remedies are exhausted." 42 U.S.C. § 1997e(a); Hernandez v. New York City Dep't. of Correction, No. 01 Civ. 10936 (KM)(FM), 2003 WL 542116, at *4 (S.D.N.Y. Feb. 18, 2003). The PLRA requires administrative exhaustion "even where the inmate seeks only money damages, and money damages cannot be awarded through the prison grievance process." Burns v. Moore, No. 99 Civ. 0966 (LMM)(THK), 2002 WL 91607, at *4 (S.D.N.Y. Jan. 24, 2004); see also Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 992 (2002); Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 1825 (2001).
To satisfy the PLRA, an inmate must comply with the specific administrative procedures provided to him. "The New York City Department of Correction (hereinafter DOC) has a well-established five-step administrative inmate grievance program (IGP) to resolve inmate grievances." Piper v. The City of New York, et al., 02 Civ. 1708 (WHP), slip op. at 5 (S.D.N.Y. Mar. 16, 2004);Berry v. City of New York, 00 Civ. 2834 (RMB), 2002 U.S. Dist. LEXIS 10520, at *16 (S.D.N.Y. Jun. 11, 2002). This process requires the inmate to:
(1) file a complaint with the Inmate Grievance Review Committee ("IRGC") for informal resolution within five working days; (2) request a formal hearing before the IRGC, with a recommendation to be made within three working days; (3) appeal to the facility warden, who must render a decision within five working days; (4) appeal to the NYCDOC Central Officer Review Committee ("CORC"), who must issue a recommendation within twenty working days; and (5) appeal to the Board of Correction, who must issue a recommendation to the Commissioner within twenty working days. The Commissioner must issue a final decision within ten working days of receipt of that recommendation.Piper, 02 Civ. 1708, slip op. at 5 (quoting NYCDOC Reg. §§ III(B)(1)-(5)).
These regulations further provide that if a grievance is not decided within the time frame allotted, the inmate may obtain an extension of time for appealing to the next stage of the process.Id. "A prisoner's remedies are not deemed exhausted until he proceeds through all five levels of the IGP." Piper, 02 Civ. 1078, slip op. at 6. Thus, once an inmate files a grievance, he must complete this five step process in order to satisfy the PLRA. Id.; Orta v. City of New York Dep't. of Corr., No. 01 Civ. 10997 (AKH), 2003 WL 58856, at *2-3 (S.D.N.Y. Feb. 25, 2003); Hernandez, 2003 U.S. Dist. LeXIS 2664. Even where an inmate files a grievance yet receives no response, "the inmate must nevertheless exhaust his appeals to the facility superintendent, the CORC, and the Board of Correction." Piper, 02 Civ. 1708, slip op. at 7; Fields v. Brown, No. 02 Civ. 1178 (SAS), 2002 WL 31202763, at *3 (S.D.N.Y. Oct. 1, 2002);Hernandez v. Coffey, No. 99 Civ. 11615 (WHP), 2003 WL 22241431, at *2 (S.D.N.Y. Sept. 29, 2003).
Furthermore, "prison officials are entitled to require strict compliance with an existing grievance procedure." Orta, 2003 WL 58856 at *7 (court dismissing complaint where plaintiff failed to follow proper grievance procedures but rather wrote letters to prison officials and placed telephone calls to Board of Corrections); Jones v. HHC, 00 Civ. 6512 (DAB)(FM), 2003 U.S. Dist. LEXIS 6510, at *11 (S.D.N.Y. Apr. 8, 2003) (court dismissing complaint and rejecting plaintiff's argument that he did not file grievance because procedures at facility were ineffective and instead brought complaint directly to facility Warden and in-house Inmate Counsel). "It is well settled that complaint letters to DOCS or prison officials do not satisfy the PLRA's exhaustion requirements." Hernandez v. Coffey, 2003 WL 22241431 at *3.
The SAC has alleged that from August 15, 2001 through December 10, 2001, Williams was transferred between correctional facilities in retaliation for conduct he engaged in. (See SAC, ¶¶ 71-76). Williams failed to file any grievances regarding his complaint that he was transferred in retaliation for making complaints as alleged. According to his grievance record, during his incarceration, Williams did submit grievances relating to complaints that: (1) Department of Correction Staff would not notarize legal paperwork he possessed; (2) he did not receive mail; (3) he was denied access to the law library; and (4) he was not afforded extra portions of food and beverages at breakfast. Williams has failed to allege exhaustion of his remedies relating to transfer. Although he alleged that he wrote several letters to various Department of Correction wardens, those alleged letters do not constitute nor satisfy the specific grievance process under the authorities cited above. The claims that Williams was transferred in retaliation between 2000 and 2001 are dismissed. Conclusion
For the foregoing reasons, the claims against the City, ADAs James and Metz, Chief Ocasio, Chief Davoren, Commissioner Horn, M. Figueroa, Det. Sean, Warden Squillante, Officers Reed, Fernandez, Hayes and Williams are dismissed. The claims of retaliatory transfer are also dismissed.
It is so ordered.