Johnson v. State of New York et al

Filing 30

MEMORANDUM AND ORDER granting 26 Motion to Dismiss for Failure to State a Claim: For the reasons set fort in the attached Memorandum and Order, defendants' motion to dismiss (Doc. No. 26) is granted. The Court certifies that any appeal fro m this Memorandum and Order would not be taken in good faith, and in forma pauperis status is therefore denied for the purpose of an appeal. The Clerk of Court is directed to transmit a copy of this Memorandum and Order and the accompanying Judgment to plaintiff pro se via U.S. mail, and to note the mailing on the docket. Ordered by Judge Roslynn R. Mauskopf on 9/22/2014. (Mauskopf, Roslynn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------X
JOHN ARTHUR JOHNSON,
Plaintiff,

MEMORANDUM AND ORDER
12-CV-5186 (RRM) (MDG)

- against CORRECTION OFFICER STEVENS; CAPTAIN
T. MAJORS, Shield #1617; CORRECTION
OFFICER C. HINES, Shield #18102,
Defendants.
-----------------------------------------------------------X
ROSLYNN R. MAUSKOPF, United States District Judge.
Plaintiff John Arthur Johnson, proceeding pro se, brings this action pursuant to 42 U.S.C.
§ 1983, alleging violations of his constitutional rights during his incarceration at Rikers Island.
(See Compl. (Doc. No. 1).) Now before the Court is defendants’ fully-briefed motion to dismiss
the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on
which relief can be granted.1 (Doc. No. 26.) For the reasons that follow, defendants’ motion is
granted.
BACKGROUND2
In his complaint, Johnson alleges that he was “habitually harrass[ed] by false strip
searches . . . [and] write-ups . . . with deliberate indifference to his medical needs as an insulin
1

Subsequent to the filing of the complaint, this Court granted Johnson leave to proceed in forma pauperis and
dismissed all claims brought against the State of New York and Warden Duffy. (See Doc. No. 5.) The Court
permitted Johnson’s claims against defendants Stevens, Majors, and Hines to proceed, (id. at 3–4), and this motion
followed.
2

At this stage, the Court’s review is limited to the facts alleged or incorporated by reference in the complaint,
documents attached to the complaint, and matters of which the Court may take judicial notice. See Chambers v.
Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); Diamond v. Local 807 Labor-Mgmt. Pension Fund, No. 12CV-5559 (RRM) (VVP), 2014 WL 527898, at *1 n.1 (E.D.N.Y. Feb. 7, 2014). The Court assumes the truth of the
facts alleged, and draws all reasonable inferences in Johnson’s favor. See Harris v. Mills, 572 F.3d 66, 71 (2d Cir.
2009). The Court is not, however, “bound to accept as true a[ny] legal conclusion couched as a factual allegation.”
Sharkey v. Quarantillo, 541 F.3d 75, 82–83 (2d Cir. 2008) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986));
Williams ex rel. United Guardianship Servs. v. Shah, No. 12-CV-3953 (RRM) (RML), 2014 WL 1311154 at *1 n.1
(E.D.N.Y. Mar. 30, 2014).

dependant [sic] diabetic” following his filing of two lawsuits against various New York City
police officers, prosecutors, and prison officials alleging a panoply of civil rights violations.3
(Compl. at 2.) Specifically, Johnson alleges that his “diabetic shoes were taken as a matter of
institutional policy of th[e] jail,” and replaced, contrary to his doctor’s orders, with inappropriate
footwear. (Id. at 3.) Johnson also alleges that for three months he was “placed in a high[]classification dorm” where he was subjected to repeated strip searches, and that defendants
“confiscated [his] clerg[y] shirt and collar” and a “white formal shirt.”4 (Id.) Based on these
occurrences, Johnson alleges claims for deliberate indifference to his medical needs and
harassment in violation of the Eighth Amendment.5 (Id. at 4.)
DISCUSSION
In order to withstand defendants’ motion to dismiss, Johnson’s complaint “must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)). Although the complaint need not contain “‘detailed factual allegations,’” simple
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Rather,
the complaint must include “enough facts to state a claim to relief that is plausible on its face,”
Twombly, 550 U.S. at 570, which means “factual content that allows the court to draw the

3

These actions, Johnson v. Pugh et al., No. 11-CV-0385 (RRM) (MDG) (E.D.N.Y.), and Johnson v. Davis et al.,
No. 12-CV-2449 (RRM) (MDG) (E.D.N.Y.), were also filed in this Court. On June 18, 2013, the Court granted the
defendants’ motion to dismiss the former. See No. 11-CV-0385, Doc. No. 61. The latter case is still pending.
4

Johnson does not claim any violation of his First Amendment rights in connection with the alleged confiscation of
his clerical attire. See generally Salahuddin v. Goord, 467 F.3d 263, 273–79 (2d Cir. 2006). In any event, however,
any such a claim would also be subject to the administrative exhaustion requirement discussed infra. See Johnson v.
Rowley, 569 F.3d 40, 45 (2d Cir. 2009).
5

The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.” U.S. Const. amend. VIII.

2

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
678 (citing Twombly, 550 U.S. at 570).
The Court is also mindful, however, that Johnson brings this action pro se. As such, his
complaint is held to a less exacting standard than a complaint drafted by an attorney. See Haines
v. Kerner, 404 U.S. 519, 520–21 (1972); Boykin v. KeyCorp, 521 F.3d 202, 213–14 (2d Cir.
2008) (citation omitted). Because pro se litigants “are entitled to a liberal construction of their
pleadings,” the Court reads Johnson’s complaint to “raise the strongest arguments that [it]
suggest[s].” Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (internal citations omitted).
However, the Court “need not argue a pro se litigant’s case nor create a case for the pro se which
does not exist.” Molina v. New York, 956 F. Supp. 257, 259 (E.D.N.Y. 1995). Where a pro se
plaintiff has altogether failed to satisfy a pleading requirement, the Court must dismiss the claim.
See Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997) (citation omitted).
I.

Exhaustion of Administrative Remedies
Defendants maintain that Johnson’s complaint must be dismissed because he failed to
exhaust his administrative remedies under the Prison Litigation Reform Act of 1996 (“PLRA”),
42 U.S.C. § 1997e.6 The PLRA requires that an inmate exhaust all available administrative
remedies before bringing an action pursuant to section 1983. See id. The scope of the
exhaustion requirement is defined by the procedure utilized by the state. Espinal v. Goord, 558
F.3d 119, 124 (2d Cir. 2009) (quoting Jones v. Bock, 549 U.S. 199, 218 (2007)) (“[T]o properly
exhaust administrative remedies prisoners must ‘complete the administrative review process in
accordance with the applicable procedural rules’ – rules that are defined not by the PLRA, but by
the prison grievance process itself.”). The exhaustion requirement “applies to all inmate suits
6

Defendants also urge that, in any event, the allegations in the complaint fail to state a plausible claim for relief.
Because the Court agrees that Johnson’s claims are barred by his failure to exhaust his administrative remedies, it
need not reach defendants’ alternative arguments on the merits.

3

about prison life, whether they involve general circumstances or particular episodes, and whether
they allege excessive force or some other wrong.” Giano v. Goord, 380 F.3d 670, 675 (2d Cir.
2004) (quoting Porter v. Nussle, 534 U.S. 516, 532 (2002)). And “[p]risoners must utilize the
state’s grievance procedures, regardless of whether the relief sought is offered through those
procedures.” Espinal, 558 F.3d at 124 (citing Booth v. Churner, 532 U.S. 731, 741 (2001)).
Requiring exhaustion is intended not only “to reduce the quantity and improve the quality
of prisoner suits,” Porter, 534 U.S. at 524, but also to “serve a constructive purpose in resolving
inmate claims, remedying errors by prison officials, and streamlining and clarifying those issues
that remain for a court to decide.” Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001). As a result,
courts decline to require exhaustion only in a narrow set of circumstances. Specifically, the need
to exhaust is discharged where (1) administrative remedies were not available; (2) a defendant
either waived or is estopped from raising failure to exhaust as a defense; or (3) there exist
“special circumstances, such as a reasonable misunderstanding of the grievance procedures,
[that] justify the prisoner’s failure to comply with the exhaustion requirement.” Ruggiero v.
Cnty. of Orange, 467 F.3d 170, 175 (2d Cir. 2006) (citing Hemphill v. New York, 380 F.3d 680,
686 (2d Cir. 2004)).
In this case, it is clear that Johnson did not exhaust his remedies.7 Instead, he appears to
argue that he was excused from doing so because there is no required administrative process.

7

Johnson never alleges that he filed a grievance relating to his allegations that he was strip searched. However,
interpreted liberally, Johnson’s opposition could be read to suggest that he did file a grievance potentially related to
his medical needs. (See Doc. No. 25 at 8.) Nevertheless, “[t]he Supreme Court has held that ‘the PLRA exhaustion
requirement requires proper exhaustion,’” Rivera v. Anna M. Kross Ctr., No. 10-CV-8696 (RJH), 2012 WL 383941,
at *3 (S.D.N.Y. Feb. 7, 2012) (quoting Woodford v. Ngo, 548 U.S. 81, 93 (2006)), which “means using all steps that
the agency holds out,” Hernandez v. Coffey, 582 F.3d 303, 305 (2d Cir. 2009) (quoting Woodford, 548 U.S. at 90),
and “follow[ing] the applicable procedural rules of the prison grievance process.” Jones v. Fed. Bureau of Prisons,
No. 11-CV-4733 (KAM) (MDG), 2013 WL 5300721, at *6 (E.D.N.Y. Sept. 19, 2013) (citing Jones, 549 U.S. at
218). Johnson does not allege that he requested a hearing or otherwise pursued the grievance, and “courts in this
Circuit have repeatedly held that a prisoner in custody of the New York City Department of Corrections who has not
received a response to a grievance but has not requested a hearing has not exhausted his administrative remedies for

4

(Compl. at 4.) That is not the case. The New York City Department of Correction (“DOC”) in
fact employs a robust grievance procedure for receiving and evaluating inmate complaints.8 See,
e.g., Rivera, 2012 WL 383941, at *3 (quoting Prince v. Latunji, 746 F. Supp. 2d 491, 495
(S.D.N.Y. 2010)) (“The New York City Department of Correction’s Inmate Grievance
Resolution Program (‘IGRP’) consists of five levels of review for inmate grievances, all of
which must be exhausted for a prisoner to meet the exhaustion requirement.”). For complaints
not alleging assault or harassment, that procedure requires that an inmate first file a grievance
with the Inmate Grievance Resolution Committee, with the option to appeal any decision to the
facility superintendent, the Central Office Review Committee, and the Board of Corrections.
(See generally Doc. No. 27-2.) Only after all of those avenues are exhausted may an inmate
initiate a federal action. Cf. Tartt v. City of New York, No. 12-CV-5405 (VEC), 2014 WL
3388849, at *2 (S.D.N.Y. July 11, 2014). A separate, expedited process is available “for
grievances involving harassment and strip searches.” Id. at *3. Johnson did not exhaust his
remedies under either procedure for either claim, and the Court addresses the ramifications for
each claim below.
A. Deliberate Indifference to Medical Needs
Johnson first claims deliberate indifference to his medical needs, as demonstrated by the
prison’s confiscation of his diabetic shoes and issuance of allegedly inappropriate footwear.

purposes of the PLRA.” Rivera, 2012 WL 383941, at *5. Even assuming that Johnson did file a grievance that
touches on his medical needs, nothing in his complaint or opposition suggests that he took any further steps.
8

As indicated above, the Court may consider “matters of which judicial notice may be taken.” Brass v. Am. Film
Techs., 987 F.2d 142, 150 (2d Cir. 1993); Johnson v. Pugh, No. 11-CV-385 (RRM) (MDG), 2013 WL 3013661, at
*2 (E.D.N.Y. June 18, 2013).
The DOC’s grievance procedure is publicly available online at
http://www.nyc.gov/html/doc/downloads/pdf/3375R-A.pdf, and is attached as Exhibit B, (see Doc. No. 27-2), to
defendants’ Affidavit in Support of their Motion to Dismiss. The Court may take judicial notice of that procedure.
Cf. Myers v. City of New York, No. 11-CV-8525 (PAE), 2012 WL 3776707, at *4 n.6 (S.D.N.Y. Aug. 29, 2012),
aff’d, 529 F. App’x 105 (2d Cir. 2013) (collecting cases and noting that courts in this circuit routinely take judicial
notice of the DOC grievance procedure).

5

“Deliberate indifference to a prisoner’s serious medical needs constitutes cruel and unusual
punishment, in violation of the Eighth Amendment, as made applicable to the states through the
Fourteenth Amendment.”9 Bellotto v. Cnty. of Orange, 248 F. App’x 232, 236 (2d Cir. 2007)
(citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). “Claims asserting ‘deliberate indifference’
concerning medical care are allegations that fall within the exhaustion requirement of the
PLRA.” Davis v. Reilly, 324 F. Supp. 2d 361, 365 (E.D.N.Y. 2004) (citing Baez v. Parks, No.
02-CV-5821 (PKC) (DF), 2004 WL 1052779, at *4 (S.D.N.Y. May 11, 2004)). But despite
having filed numerous other grievances in the past, Johnson simply declined to do so here. And
nothing in his papers reveals a “reasonable misunderstanding of the grievance procedures” that
would justify that failure.10 Ruggiero, 467 F.3d at 175. There is no suggestion, for instance, that
Johnson’s “mistaken belief” that he need not exhaust his claim was attributable to any reasonable
reliance on DOC regulations. Mccloud v. Roy, No. 08-CV-839 (LEK) (ATB), 2010 WL 985731,
at *4 (N.D.N.Y. Feb. 22, 2010), rep. and recommendation adopted by 2010 WL 985737
(N.D.N.Y. Mar. 16, 2010) (citing Boddie v. Bradley, 228 F. App’x 5, 7 (2d Cir. 2006)). And
“[i]t is well established that the PLRA’s exhaustion requirement cannot be waived based upon
[a] plaintiff’s belief that pursuing administrative remedies would be ineffective or futile.”11

9

Whether a claim is brought by a pre-trial detainee or a convicted inmate, this analysis is the same. See Nielsen v.
Rabin, 746 F.3d 58, 63 n.3 (2d Cir. 2014) (quoting Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009), and noting
that “[c]laims for deliberate indifference . . . should be analyzed under the same standard irrespective of whether
they are brought under the Eighth or Fourteenth Amendment”).

10

The Court notes that Johnson’s opposition describes numerous other events that are not the subject of this lawsuit,
and asserts that he was denied the paperwork necessary to file a grievance on prior occasions. (See, e.g., Doc. No.
25 at 6–7.) But Johnson does not allege such a denial in this case; rather, he asserts simply that no grievance was
required. (See Compl. at 4.) Indeed, Johnson states plainly that his “legal standing is based on not going through
grievance proceeding[s], or procedure[s].” (Doc. No. 25 at 8.) The Court therefore need not consider whether
Johnson was prevented from filing a grievance. Notably, Johnson also indicates that he was able to file additional
grievances subsequent to those occasions on which he was allegedly denied the necessary paperwork. (See Doc. No.
25 at 8.)

11

Rather, “[t]he appropriate recourse when a prisoner believes that he will lose his grievance is to file the grievance,
lose, exhaust the administrative avenues of appeal, and then sue.” Tartt, 2014 WL 3388849, at *4 (citing Woodford,
548 U.S. at 89–90).

6

Berry v. City of N.Y., No. 00-CV-2834, 2002 WL 31045943, at *7 (S.D.N.Y. June 11, 2002)
(collecting cases); accord Myers v. City of New York, 2012 WL 3776707, at *5 (collecting
cases). Johnson’s bare assertion that exhaustion was unnecessary is both incorrect and
insufficient to excuse his failure to exhaust his administrative remedies. As such, the PLRA bars
his claim for deliberate indifference to his medical needs.12
B. Unreasonable Strip Searches
Johnson next claims that he was subjected to repeated unreasonable strip searches,
ostensibly in retaliation for having filed two federal civil rights lawsuits. “Generally, strip
searches have been upheld as a reasonable security measure within a correctional facility even in
the absence of probable cause as long as they are related to a legitimate penological goal.” JeanLaurent v. Wilkerson, 438 F. Supp. 2d 318, 323 (S.D.N.Y. 2006), aff’d, 461 F. App’x 18 (2d Cir.
2012). “[A]lthough inmates do possess a limited right to bodily privacy, some aspects of that
right must yield to searches for contraband, even random visual body-cavity searches, so that
prison administrators may maintain security and discipline in their institutions.” Covino v.
Patrissi, 967 F.2d 73, 79 (2d Cir. 1992) (citing Cumbey v. Meachum, 684 F.2d 712, 714 (10th
Cir. 1982)). A strip search may be unconstitutional, however, “if it is unrelated to any legitimate
penological goal or if it is designed to intimidate, harass, or punish.” Jean-Laurent, 438 F. Supp.
2d at 323.

12

Even if Johnson’s claim were not barred under the PLRA, the complaint fails plausibly to allege deliberate
indifference on the part of prison officials. “Deliberate indifference is a mental state equivalent to subjective
recklessness, as the term is used in criminal law.” Salahuddin, 467 F.3d at 280 (citing Farmer v. Brennan, 511 U.S.
825, 839–40 (1994)). Here, Johnson has not alleged any facts to suggest that defendants “disregarded a risk of harm
. . . of which the defendant[s] w[ere] aware.” Caiozzo, 581 F.3d at 71 (citing Farmer, 511 U.S. at 837). In
particular, although Johnson insists that the attached medical record dated August 3, 2012, required prison officials
to provide him with diabetic shoes, the form calls only for “institutional footwear and an extra-matress [sic] for
medical reasons.” (Compl. at 7.) A subsequent medical form dated September 10, 2012, does request that Johnson
be permitted to “b[r]ing in supportive foot ware [sic] from his property (if [it] meets NIC security requirements) for
medical reasons.” (Id. at 8.) Johnson does not allege, however, that prison officials failed to honor the request from
September 10.

7

Johnson also failed to exhaust his administrative remedies with respect to this claim, and
other courts have acknowledged that “[b]eing subjected to visual strip searches is a grievable
offense for which a prisoner must exhaust all administrative remedies.” Leon v. City of New
York, No. 13-CV-5407 (CM), 2014 WL 3408206, at *3 (S.D.N.Y. July 10, 2014); see also
Johnson v. Schriro, No. 12-CV-7239 (WHP), 2013 WL 5718474, at *3 (S.D.N.Y. Oct. 15,
2013). Here, however, Johnson asserts that the strip searches were a form of harassment
perpetrated in retaliation for his filing of two lawsuits, and therefore that he was not required to
invoke the grievance procedure. (Doc. No. 25 at 8.) The relevant portion of the DOC grievance
procedure explicitly provides that “[i]nmate allegations of assault or harassment by either staff or
inmates are not grievable under the grievance mechanism.”13 (Doc. No. 27-2 at 2.)
Nevertheless, New York City has established a separate expedited process for filing grievances
alleging assault or harassment. See Tartt, 2014 WL 3388849, at *3 (citing 7 N.Y. Comp. Codes
R. & Regs. §§ 701.5, 701.8, 701.10). There is no indication that Johnson made any attempt to
exhaust his claim of harassment under either procedure, however, and thus this claim too is
barred by the PLRA.
II.

Futility of Amendment
Even affording Johnson’s pro se complaint the most liberal reading possible, his
allegations fail to state a claim for which relief can be granted. Generally, “the court should not
dismiss without granting leave to amend at least once when a liberal reading of the complaint
gives any indication that a valid claim might be stated.” Gomez v. USAA Fed. Sav. Bank, 171
F.3d 794, 795–96 (2d Cir. 1999) (quoting Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991)).

13

It does, however, provide that any such complaints submitted via the grievance procedure be “hand delivered by
[Inmate Grievance Resolution Committee] staff, on the day of receipt, to the office of the Commanding Officer, or
designee, where the form shall be time-stamped and an appropriate entry made in a confidential [Inmate Grievance
Resolution Program] ASSAULT/HARASSMENT logbook.” (See Doc. No. 27-2 at 2.)

8

In this case, however, “[t]he problem with [Johnson]’s causes of action is substantive . . . [and]
better pleading would not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Leave
to amend is therefore denied as futile. Id.; see also Watkins v. Hynes, No. 13-CV-5029 (RRM)
(LB), 2014 WL 4065095, at *2 (E.D.N.Y. Aug. 15, 2014).
CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss (Doc. No. 26) is granted. The
Court certifies that any appeal from this Memorandum and Order would not be taken in good
faith, and in forma pauperis status is therefore denied for the purpose of an appeal. See
Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
The Clerk of Court is directed to transmit a copy of this Memorandum and Order and the
accompanying Judgment to plaintiff pro se via U.S. mail, and to note the mailing on the docket.

SO ORDERED.

Roslynn R. Mauskopf

Dated: Brooklyn, New York
September 22, 2014

____________________________________
ROSLYNN R. MAUSKOPF
United States District Judge

9