Cook v. Arnone et al

Filing 4

PRISCS- ORDER, ( Dismissal due by 9/20/2012). Signed by Judge Holly B. Fitzsimmons on 8/16/2012. (Payton, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

ANDREW W. COOK
PRISONER CASE NO.
3:12-cv-128 (AVC)

v.
LEO C. ARNONE, ET AL.
ORDER

The plaintiff, Andrew W. Cook, was incarcerated at Corrigan
Correctional Institution when he filed this civil rights action
pro se pursuant to 42 U.S.C. § 1983.

He sues Commissioner of

Correction Arnone, Warden Erfe, Deputy Warden Santiago, Director
of Offender Classification Milling, Health Services Administrator
Marto and District Administrator Lajoie.
Under 28 U.S.C. § 1915, the court may dismiss any portion of
the complaint that either “is frivolous, malicious, or fails to
state a claim upon which relief may be granted,” or “seeks
monetary relief from a defendant who is immune from such relief.”
Id.

Prisoners are required to exhaust their administrative

remedies before commencing an action in federal court and must
comply with all procedural rules regarding the grievance process.
See Woodford v. Ngo, 548 U.S. 81, 83-85 (2006).

Completion of

the exhaustion process after a federal action has been filed does
not satisfy the exhaustion requirement.
F.3d 116, 122 (2d Cir. 2001).

See Neal v. Goord, 267

Failure to exhaust administrative remedies is an affirmative
defense.

See Jones v. Bock, 549

U.S. 199, 216 (2007).

A court

may, however, dismiss a complaint for failure to state a claim
where the allegations on the face of the complaint establish that
it is subject to dismissal, even on the basis of an affirmative
defense.

See id. at 213-16 (acknowledging that court may dismiss

a complaint sua sponte where an affirmative defense is apparent
on the face of the complaint).
The timing of the events set forth in the complaint suggest
that plaintiff could not have fully exhausted his administrative
remedies prior to filing this lawsuit.

If that is true, the

complaint must be dismissed.
The plaintiff asserts that he was incarcerated as of October
20, 2011.

At that time, he was withdrawing from a medication.

He claims defendant Marto denied him anxiety and pain medication
for various medical conditions.
A judge sentenced him to a term of incarceration on November
8, 2011.

Defendants Erfe and Santiago denied his requests for

early release and defendant Lajoie upheld the decision.

He filed

a grievance regarding this decision, but it was denied at some
point after December 22, 2011.
Defendant Milling rated his classification levels
erroneously on November 9, 2011 and December 14, 2011.

In

December 2011, the plaintiff began to receive smaller portions of

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food.
On multiple days beginning on January 9, 2012, the plaintiff
was housed in the Admitting and Processing room for many hours.
He has not received adequate mental health or medical treatment
and has suffered back pain from sleeping on a mattress on the
floor of his cell.

The plaintiff seeks monetary damages and

injunctive relief.
The administrative remedies for the State of Connecticut
Department of Correction are set forth in Administrative
Directive 9.6, entitled Inmate Administrative Remedies.

The

Inmate Grievance Procedure provides an administrative remedy for
all matters subject to the Commissioner’s authority that are not
specifically identified in Sections 4(B) through 4(I) of the
directive.

The plaintiff’s claims regarding conditions of

confinement at Corrigan are grievable pursuant to
Administrative Directive 9.6, Sections 4 and 6.

See

Administrative Directive 9.6, Sections 4(A) and 6(B),
http://www.ct.gov/doc/LIB/doc/PDF/AD/ad0906.pdf.
Pursuant to Administrative Directive 9.6, an inmate must
first seek informal resolution of the issue.

If informal

resolution is unsuccessful, the inmate must file a Level 1
grievance.

The Unit Administrator has thirty business days from

receipt of the grievance to respond to it.

If the Level 1

grievance is denied or if the Unit Administrator fails to timely

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respond to the grievance, the inmate must appeal the denial or
failure to respond to Level 2.

A District Administrator must

respond to the Level 2 appeal within thirty business days of
receipt of the appeal.

Level 3 appeals are limited to certain

types of grievances relating to department level policy, the
integrity of the grievance procedure and untimely responses to
Level 2 grievances.

The Commissioner or his or her designee must

respond to a Level 3 grievance appeal within thirty business days
of receipt of the appeal.

See id. at Section 6(A)-(L).

The plaintiff does not indicate that he engaged in informal
resolution or formal resolution of any of his claims, except his
claim for early release.

He says that he filed a grievance which

was denied, but does not indicate whether he appealed the denial
of the grievance.
Matters relating to the provision of health services to
inmates are grievable and are addressed in Administrative
Directive 8.9, entitled Health Services Review.
Section 4(K).

See id. at

Pursuant to Administrative Directive 8.9, an

inmate seeking review of a medical decision regarding the
diagnosis or treatment or lack of a diagnosis or treatment of a
medical condition, must apply for a Health Services Review by
filling out an Inmate Administrative Remedy Form, CN 9602.
Administrative Directive 8.9, Sections 10,
http://www.ct.gov/doc/LIB/doc/PDF/AD/ad0809.pdf.

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See

The plaintiff’s complaint is dated January 26, 2012, and was
received by the court on January 27, 2012.

Based on the time

periods set forth in the Administrative Directives described
above, it is apparent that there was insufficient time for
plaintiff to have fully exhausted his claims prior to filing this
lawsuit.
The Second Circuit has cautioned the district courts not to
dismiss a case sua sponte without first ensuring that plaintiff
has notice and an opportunity to be heard.

See Abbas v. Dixon,

480 F.3d 636, 639-40 (2d Cir. 2007); Snider v. Melindez, 199 F.3d
108, 112 (2d Cir. 1999) (requiring district court to afford
prisoner notice and opportunity to demonstrate that he has
exhausted his available remedies).

Accordingly, the Court

directs the plaintiff to explain to the Court why this case
should not be dismissed for failure to fully exhaust his
administrative remedies before filing this action.

Any such

dismissal would be without prejudice to plaintiff re-filing this
action after fully exhausting his administrative remedies.
The plaintiff shall submit his response within thirty (30)
days from the date of this order.

The plaintiff shall attach to

his response copies of the documents showing exhaustion of his
claims.

Failure to provide evidence of exhaustion, or evidence

of why plaintiff was not required to exhaust his administrative
remedies, within the time provided may result in the dismissal of
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this action without any further notice.
SO ORDERED this 16th day of August 2012, at Bridgeport,
Connecticut.

/s/ Holly B. Fitzsimmons
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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