Davis v. Williams et al

Filing 19

ORDER GRANTING MOTION TO DISMISS. For the reasons stated in the attached ruling, the Court GRANTS defendants' motion to dismiss (Doc. # 17 ). If plaintiff believes that the Court has based its decision on any misunderstanding of the facts or law, plaintiff may promptly file a motion for reconsideration within 14 days of this decision by March 2, 2018. The Clerk of Court shall close this case. It is so ordered.Signed by Judge Jeffrey A. Meyer on 2/16/2018. (Lombard, N.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

MICHAEL DAVIS,
Plaintiff,
v.

No. 3:16-cv-01981 (JAM)

DR. CHARLES WILLIAMS, et al.,
Defendants.
ORDER GRANTING MOTION TO DISMISS
Plaintiff Michael Davis is a prisoner of the Connecticut Department of Correction. He has
filed this lawsuit against two correction officers claiming a violation of his constitutional rights.
Defendants have now moved to dismiss the complaint for failure to exhaust administrative
remedies pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a).
Although most frequently raised on a motion for summary judgment, the defense of
failure to exhaust administrative remedies may be addressed on a motion to dismiss if the
complaint and documents of which judicial notice may be taken conclusively show that a claim
was not properly and timely exhausted. See, e.g., Yeldon v. Ekpe, 159 F. App’x 314, 316 (2d Cir.
2015). As a matter of course, the Court must construe the allegations of a pro se complaint in the
light most favorable to the plaintiff. Id. at 315.
The Connecticut Department of Correction has well-established administrative remedy
procedures. See Riles v. Buchanan, 656 F. App’x 577, 579–80 (2d Cir. 2016) (describing in
detail these requirements). The complaint alleges that plaintiff’s Level 1 grievance was denied on
September 27, 2016, and that plaintiff did not file a Level 2 appeal of this denial until October 7,
2016. Doc. #1 at 5–6. Defendants contend on this basis that the Level 2 appeal was not timely
filed within the required five days from denial of his Level 1 grievance. Doc. #17-1 at 9; see also

Riles, 656 F. App’x at 580 (“An inmate may appeal a Level 1 disposition to Level 2 within five
days of receipt of the decision.”). Plaintiff’s response to the motion to dismiss does nothing to
refute defendants’ claim that his Level 2 appeal was not timely filed.
It is true that a prisoner’s failure to timely avail himself of a grievance appeal may be
excused if the institution decides to overlook the lack of timeliness and considers the merits of
the appeal. See, e.g., Morales v. Dzurenda, 2009 WL 8695525, at *3 (D. Conn. 2009), aff’d, 383
F. App’x 28 (2d Cir. 2010). But plaintiff makes no claim in his reply to the motion to dismiss
that his Level 2 appeal was considered on the merits. Moreover, the complaint itself alleges that
the Level 2 appeal was denied “for some technical reason or another,” before plaintiff “resent”
another Level 2 grievance eleven days later. Doc. #1 at 6–7. These allegations are inconsistent
with a conclusion that the Level 2 appeal was considered on its merits.
Accordingly, the Court GRANTS the motion to dismiss (Doc. #17) for failure to timely
exhaust administrative remedies as required by the PLRA. If plaintiff believes that the Court has
based its decision on any misunderstanding of the facts or law, plaintiff may promptly file a
motion for reconsideration within 14 days of this decision by March 2, 2018. The Clerk of Court
shall close this case.
Dated at New Haven this 16th day of February 2018.
/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge