Cruz v. DeMarco et al
Filing
42
ORDER granting 24 Motion for Summary Judgment; granting 25 Motion for Summary Judgment: For the reasons set forth herein, the Court grants the County Defendants' motion for summary judgment and grants Peconic Bay's motion for summary judgment on the ground that plaintiff has failed to exhaust his administrative remedies. Accordingly, the complaint is dismissed without prejudice. The Clerk of the Court shall enter judgment accordingly and close the case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/3/2013. Mailed by Chambers to pro se plaintiff FCM 9/3/13.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 12-cv-4277 (JFB) (GRB)
_____________________
JASON M. CRUZ,
Plaintiff,
VERSUS
VINCENT F. DEMARCO, ET AL.,
Defendants.
___________________
MEMORANDUM AND ORDER
September 3, 2013
___________________
JOSEPH F. BIANCO, District Judge:
Pro se plaintiff Jason M. Cruz (“Cruz”
or “plaintiff”) brought this action against
Sheriff Vincent F. DeMarco, Suffolk County
Correctional Facility Medical Staff, Suffolk
County Correctional Facility Dental Staff,
and the Suffolk County Correctional Facility
(collectively, the “County Defendants”), as
well as against Peconic Bay Medical Center
(“Peconic Bay”), alleging violations of
Cruz’s constitutional rights pursuant to 42
U.S.C. § 1983. Plaintiff alleges that
corrections officers placed him in housing
with rival gang members and, thus, failed to
protect him from violence from other
prisoners. Plaintiff also alleges that medical
personnel, including those from Peconic
Bay, failed to properly treat his injuries
resulting from that violence by failing to
diagnose him with a broken jaw.
The County Defendants initially moved
for judgment on the pleadings, pursuant to
Federal Rule of Civil Procedure 12(c),
arguing that plaintiff failed to exhaust his
administrative remedies. Peconic Bay filed a
motion to dismiss, pursuant to Federal Rule
of Civil Procedure 12(b)(6), also arguing
that Cruz failed to exhaust his administrative
remedies, as well as moving for dismissal on
numerous other grounds.1 The Court
subsequently
converted
the
County
Defendants’ motion for judgment on the
pleadings and Peconic Bay’s motion to
dismiss into motions for summary judgment
upon receipt of extrinsic documents relevant
to the exhaustion issue, and gave plaintiff an
opportunity to submit arguments and
1
Specifically, Peconic Bay argued that plaintiff’s
complaint should also be dismissed because: (1)
plaintiff has failed to allege state action by Peconic
Bay; (2) plaintiff has failed to state a cause of action;
and (3) Peconic Bay has qualified immunity.
However, these issues are moot in light of the Court’s
ruling that plaintiff has failed to exhaust his
administrative remedies and, thus, the Court does not
address them.
Plaintiff made two appointments with
the dentist because of sustained pain to his
face and an inability to eat. (Id. at 10.)
Plaintiff received two x-rays that did not
reveal any bone damage; however, the
dentist informed plaintiff that he needed to
have a tooth removed. (Id.) When plaintiff
went to an oral surgeon outside SCCF,
another x-ray was performed and the
surgeon told plaintiff that he had a broken
jaw. (Id.) Plaintiff claims that approximately
three weeks elapsed between the original
fight and the diagnosis of a broken jaw, and
that he was not involved in any other
altercations that could have caused this
injury. (Id. at 10-11.)
supporting documentation with respect to
his alleged failure to exhaust.
For the reasons set forth below,
summary judgment is properly granted in
favor of the County Defendants and Peconic
Bay because of plaintiff’s failure to exhaust
his administrative remedies.
I. BACKGROUND
A. Factual Background
1. The Complaint
The following facts are taken from the
complaint and are not findings of fact by the
Court.
Plaintiff also alleges that, approximately
two months after these events occurred, he
was again transferred back to the housing
unit with the Bloods gang members. (Id. at
11.) Plaintiff states that he was again
immediately assaulted upon his return to this
housing unit. (Id. at 11-12.)
Plaintiff is an inmate at the Suffolk
County Correctional Facility (“SCCF”).
Plaintiff alleges that, on December 5, 2011,
corrections officers transferred him to an
unsafe housing unit in retaliation for kicking
garbage at a corrections officer. (Compl. at
6-7.) Plaintiff claims that, although he has
numerous
tattoos
demonstrating
his
affiliation with the Crips gang, he was
transferred to a housing unit occupied by
members of the Bloods, a rival rang. (Id. at
7.) Plaintiff alleges that, shortly after he was
transferred, he was attacked by fellow
inmates and received numerous injuries,
including head trauma and a significant
laceration to his ear. (Id. at 8.) Plaintiff was
taken to Peconic Bay for treatment. (Id.) The
doctor at the hospital said that the only
treatment plaintiff needed was stitches for
his ear. (Id. at 8-9.) When plaintiff became
agitated during the procedure, the doctor
used medical glue instead of stitches to
repair the laceration. (Id. at 9.) Plaintiff
claims that, once he returned to SCCF, he
was not given the antibiotics the doctor at
Peconic Bay prescribed for him. (Id.)
2. The Grievance Procedure
Inmates at the SCCF have a three-tiered
formal grievance procedure available to
them. Each inmate receives a copy of the
Inmate Handbook upon entering the facility.
(See Decl. of Nicholas DeSimone, Dec. 3,
2012 (“DeSimone Decl.”) ¶ 2.) The Inmate
Handbook explains the grievance process
available for all inmates to follow.
According to the three-part grievance
process, an inmate with a grievance must
first complain to the correctional officer
located in his cell block. This grievance
must be filed within five days of the incident
giving rise to the grievance. If dissatisfied
with the results of the first step, he may file
a grievance form to be reviewed by the
Housing Sergeant assigned to an inmate’s
housing unit; if the issue is not there
resolved, the grievance will be forwarded
2
attached to the declaration confirms this
representation. (See DeSimone Decl. Ex. C.)
onto the Grievance Coordinator for further
investigation, leading to a subsequent
determination. The Grievance Coordinator is
required to make a written determination
within five business days. If an inmate is
dissatisfied with the results of the preceding
two steps, the inmate may appeal the
grievance board’s determination to the
Warden. If the appeal results in an
unfavorable decision, an inmate may appeal
this determination to the State Commission
of Correction. (See DeSimone Decl. Ex. A,
Inmate Handbook, at 15-16.)
B. Procedural Background
Plaintiff filed a complaint in this action
on August 24, 2012. The County Defendants
answered the complaint on November 5,
2012. Peconic Bay filed a motion to dismiss
on December 4, 2012, and the County
Defendants filed a motion for judgment on
the pleadings on December 5, 2012. Plaintiff
filed an opposition to the motions on
January 16, 2013. Peconic Bay filed a reply
in support of its motion on January 29, 2013.
On July 2, 2013, the Court issued an Order
converting the motion to dismiss and the
motion for judgment on the pleadings into
motions for summary judgment, and
directed plaintiff to “provide the Court with
arguments and supporting documentation
with respect to the issues of his alleged
failure to exhaust.” (ECF No. 37.) The Court
also supplied plaintiff with a copy of Local
Civil Rules 56.1 and 56.2. On August 1,
2013, plaintiff submitted a letter in response
to the Court’s order. The Court has fully
considered all of the submissions of the
parties.
In his complaint, plaintiff checked the
box indicating that he filed a grievance with
SCCF regarding this matter. (Compl. at 2.)
However, plaintiff merely states that he filed
a grievance by “dropp[ing] numerous slips
to get called down to the dentist.” (Id.)
Plaintiff also states that he complained about
the pain to a nurse and to a dentist. (Id. at 3.)
Later in the complaint, plaintiff claims that,
although SCCF has a grievance procedure,
“they do not work with medical, inmate[s]
must file medical requests only when it is a
medical issue.” (Id. at 4.) Plaintiff does not
detail any formal grievances he filed
regarding these incidents; instead, in
response to the Court’s order converting the
motions to ones for summary judgment,
plaintiff asserts for the first time that he
“[tried] to place a grievance but they just
disappeared.” (Letter, Aug. 1, 2013, ECF
No. 39, at 2.)
II. STANDARD OF REVIEW
It is accepted that “[w]hen matters
outside the pleadings are presented in
response to a [Fed. R. Civ. P.] 12(b)(6)
motion, a district court must either exclude
the additional material and decide the
motion on the complaint alone or convert
the motion to one for summary judgment
under Fed. R. Civ. P. 56 and afford all
parties the opportunity to present supporting
material.” Friedl v. City of N.Y., 210 F.3d
79, 83 (2d Cir. 2000) (citation and internal
quotation marks omitted). Generally, “a
district court has discretion to convert a
motion to dismiss into a motion for
summary judgment.” Garcha v. City of
In support of their motion for judgment
on the pleadings, the County Defendants
submitted a declaration from Nicholas
DeSimone, the supervisor of the Inmate
Grievance Unit at SCCF. The declaration
states that Cruz has submitted four
grievances to the Inmate Grievance Program
at SCCF, none of which involve the
incidents at issue in this case. (DeSimone
Decl. ¶ 3.) A review of Cruz’s grievance file
3
(B) showing that the materials cited do not
establish the absence or presence of a
genuine dispute, or that an adverse party
cannot produce admissible evidence to
support the fact.” Fed. R. Civ. P. 56(c)(1).
The court must “‘view the evidence in the
light most favorable to the party opposing
summary judgment,’” and “‘draw all
reasonable inferences in favor of that
party.’” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)).
Beacon, 351 F. Supp. 2d 213, 216 (S.D.N.Y.
2005). Exercise of such discretion will turn
on “‘whether or not the proffered material,
and the resulting conversion from the Rule
12(b)(6) to the Rule 56 procedure, is likely
to facilitate the disposition of the action.’”
Carione v. United States, 368 F. Supp. 2d
186, 191 (E.D.N.Y. 2005) (quoting 5C
Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure, Civil § 1366
(3d ed. 2004)).
Here, the Court has concluded, in its
discretion, that conversion of the County
Defendants’ motion for judgment on the
pleadings and Peconic Bay’s motion to
dismiss is proper. Specifically, defendants
expressly
referenced
and
submitted
materials outside of the pleadings for the
Court’s consideration. Moreover, plaintiff
was given the opportunity to present any
material pertinent to a summary judgment
motion and was supplied with copies of
Local Civil Rule 56.1 and 56.2 so that he
understood the consequences of a motion for
summary judgment. See Hernandez v.
Coffey, 582 F.3d 303, 309 (2d Cir. 2009).
Thus, the Court will review the converted
motions under the governing standards for
summary judgment.
However, the Second Circuit has made
clear that an inmate is not entitled to a jury
trial on factual disputes regarding this failure
to exhaust administrative remedies under the
Prison Litigation Reform Act (“PLRA”). See
Messa v. Goord, 652 F.3d 305, 308 (2d Cir.
2011) (per curiam) (holding that there is no
“right to a jury trial on factual disputes
regarding an inmate’s failure to exhaust
administrative remedies as required by the
PLRA”); Abdur-Rahman v. Terrell, 10-CV3092, 2012 WL 4472119, at *5 (E.D.N.Y.
Sept. 25, 2012) (“Determining whether an
inmate has exhausted his remedies is a
threshold matter for the court to decide, even
where there is a disputed issue of fact.”).
The moving party bears the burden of
establishing that it is entitled to summary
judgment. Huminski v. Corsones, 396 F.3d
53, 69 (2d Cir. 2005). This burden requires a
movant to establish “that there is no genuine
dispute as to any material fact and [that] the
movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). In order to do
so, a party must support their position “by:
(A) citing to particular parts of materials in
the
record,
including
depositions,
documents,
electronically
stored
information, affidavits or declarations,
stipulations (including those made for
purposes of the motion only), admissions,
interrogatory answers, or other materials; or
III. DISCUSSION
A. Failure to Exhaust
The County Defendants and Peconic
Bay argue that plaintiff is barred from
bringing this claim in federal court because
plaintiff has not exhausted his administrative
remedies. For the reasons set forth below,
the Court agrees.
1. Legal Standard
The Prison Litigation Reform Act of
1995 states that “[n]o action shall be brought
4
to seek administrative review, that
behavior may equitably estop them
from raising an exhaustion defense;
(3) imperfect exhaustion may be
justified in special circumstances, for
instance if the inmate complied with
his reasonable interpretation of
unclear administrative regulations, or
if the inmate reasonably believed he
could raise a grievance in
disciplinary proceedings and gave
prison
officials
sufficient
information to investigate the
grievance.
with respect to prison conditions under [42
U.S.C. § 1983], 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.” 42 U.S.C. § 1997e(a). “The
PLRA 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.’ Prisoners must
utilize the state’s grievance procedures,
regardless of whether the relief sought is
offered through those procedures.” Espinal
v. Goord, 558 F.3d 119, 124 (2d Cir. 2009)
(quoting Porter v. Nussle, 534 U.S. 516, 532
(2002)
(citations
omitted)).
“Proper
exhaustion demands compliance with an
agency’s deadlines and other critical
procedural rules because no adjudicative
system can function effectively without
imposing some orderly structure on the
course of its proceedings” Woodford v. Ngo,
548 U.S. 81, 90-91 (2006) (footnote
omitted). Therefore, the exhaustion inquiry
requires a court to “look at the state prison
procedures and the prisoner’s grievance to
determine whether the prisoner has
complied with those procedures.” Espinal,
558 F.3d at 124 (citing Jones v. Bock, 549
U.S. 199, 218 (2007) and Woodford, 548
U.S. at 88-90).
Reynoso v. Swezey, 238 F. App’x 660, 662
(2d Cir. 2007) (internal citations omitted);
see also Davis v. New York, 311 F. App’x
397, 399 (2d Cir. 2009) (citing Hemphill v.
New York, 380 F.3d 680, 686, 691 (2d Cir.
2004)). Initially, it was unclear whether the
above-discussed considerations would be
impacted by Woodford. See, e.g., Reynoso,
238 F. App’x at 662 (“Because we agree
with the district court that [plaintiff] cannot
prevail on any of these grounds, we have no
occasion to decide whether Woodford has
bearing on them.”); Ruggiero v. Cnty. of
Orange, 467 F.3d 170, 176 (2d Cir. 2006)
(“We need not determine what effect
Woodford has on our case law in this area,
however, because [plaintiff] could not have
prevailed even under our pre-Woodford case
law.”). However, the Second Circuit has
continued to hold post-Woodford that an
inmate’s failure to comply with the
exhaustion requirement may be excused on
these grounds. See Messa, 652 F.3d at 309
(citing the Hemphill factors).
Prior to Woodford, the Second Circuit
recognized some nuances in the
exhaustion
requirement:
(1)
administrative remedies that are
ostensibly ‘available’ may be
unavailable as a practical matter, for
instance, if the inmate has already
obtained a favorable result in
administrative proceedings but has
no means of enforcing that result or
if the inmate has been deterred by
intimidation; (2) similarly, if prison
officials inhibit the inmate’s ability
As
the
Supreme
Court
has
held, exhaustion is an affirmative defense.
See Jones, 549 U.S. at 216 (“We conclude
that failure to exhaust is an affirmative
defense under the PLRA, and that inmates
are not required to specially plead or
demonstrate
exhaustion
in
their
5
complaints.”); see also Key v. Toussaint,
660 F. Supp. 2d 518, 523 (S.D.N.Y. 2009)
(Report and Recommendation) (“Failure to
exhaust administrative remedies under the
PLRA is an affirmative defense, and thus the
defendants have the burden of proving that
[plaintiff’s] retaliation claim has not been
exhausted.” (citations omitted)).
clear that “[a]n administrative remedy is not
‘available,’ and therefore need not be
exhausted, if prison officials erroneously
inform an inmate that the remedy does not
exist or inaccurately describe the steps he
needs to take to pursue it.” Pavey v. Conley,
663 F.3d 899, 906 (7th Cir. 2011) (citations
omitted); see also Smith v. Woods, No. 03CV-480, 2006 WL 1133247, at *15
(N.D.N.Y. Apr. 24, 2006) (Report and
Recommendation) (“[C]ase law exists
supporting the proposition that, assuming
plaintiff was instructed by prison officials,
contrary to prison regulations, that he could
not file a grievance, and plaintiff indeed did
not initiate the grievance process by filing
that grievance in reliance on that
misrepresentation, the formal grievance
proceeding required by the prison grievance
system was never ‘available’ to plaintiff
within the meaning of the PLRA.” (internal
alterations,
citations,
emphasis,
and
quotation marks omitted)).
2. Application
Plaintiff does not state in his complaint
that he filed a formal grievance as required
by the PLRA. In fact, in his opposition to
defendants’ original motions, plaintiff does
not offer any explanation regarding his
failure to exhaust these claims. However,
construing the pro se plaintiff’s complaint
liberally, it appears plaintiff could be
making two arguments: (1) that the
administrative grievance procedures were
not “available” to him because prison
officials do not allow grievances regarding
medical issues, and (2) that he believed
“dropping numerous slips” in order to
receive medical attention was sufficient to
exhaust his remedies. In plaintiff’s August 1,
2013 letter to the Court, plaintiff also asserts
that he did attempt to file a grievance but
that it disappeared. For the reasons set forth
below, all of these arguments are without
merit.
In this case, plaintiff has not adequately
alleged that the administrative grievance
procedure was not “available” to him due to
a misrepresentation by prison officials. See
Hemphill, 380 F.3d at 686. Plaintiff’s
statement that the SCCF does not allow
grievances relating to medical issues is
completely self-serving and is devoid of any
specific supporting details. For example,
plaintiff fails to provide a rejected grievance
form or note any conversations with prison
officials in which they erroneously told him
that he could not file a grievance regarding
this issue. See Kasiem v. Switz, 756 F. Supp.
2d 570, 577 (S.D.N.Y. 2010) (stating that an
inmate could demonstrate that he reasonably
believed pursuing a grievance would be
“futile or impossible” through the
introduction of evidence regarding “prison
officials’ threats, beatings, or denials of
The Second Circuit has stated that, if a
prisoner has failed to exhaust, the Court
must determine “whether administrative
remedies were in fact ‘available’ to the
prisoner . . . or whether the defendants’ own
actions inhibiting the inmate’s exhaustion of
remedies may estop . . . the defendants from
raising the plaintiff’s failure to exhaust as a
defense.” Hemphill, 380 F.3d at 686
(internal citations omitted).2 Moreover, it is
2
The Second Circuit has noted that “the case law on
the PLRA's exhaustion requirement does not always
distinguish clearly between” these exceptions to the
exhaustion requirement. Giano v. Goord, 380 F.3d
670, 677 n.6 (2d Cir. 2004).
6
call slips did not qualify as exhaustion under
the PLRA); Williams v. Metro. Det. Ctr.,
418 F. Supp. 2d 96, 101 (E.D.N.Y. 2005)
(“While the complaint shows that [plaintiff]
did make efforts to gain medical attention
through letters and conversations with [the
warden] and the medical staff, these efforts
do not include the required steps of the
PLRA’s administrative remedy process.”);
Muhammad v. Pico, 02-CIV-1052, 2003 WL
21792158, at *8 (S.D.N.Y. Aug. 5, 2003)
(collecting cases and stating that “[d]istrict
court decisions in this circuit have
repeatedly held that complaint letters to the
DOCS Commissioner or the facility
Superintendent do not satisfy the PLRA’s
exhaustion requirements”).3
grievance forms, or by other misconduct
deterring him from fulfilling the requisite
procedure”). Moreover, plaintiff’s assertion
is contradicted by the SCCF grievance
procedure, and plaintiff has offered no
evidence to the contrary.
This case is entirely distinguishable from
the Court’s recent decision in Williams v.
Suffolk County, 11-CV-5198, 2012 WL
6727160 (E.D.N.Y. Dec. 28, 2012). In
Williams, the County also argued that an
inmate’s claim should be dismissed for
failure to exhaust. However, this Court ruled
that, although the plaintiff did not properly
exhaust his remedies, the plaintiff
adequately alleged for purposes of a motion
to dismiss that grievance procedures were
not available to him because he was
erroneously told by prison officials when he
filed a formal grievance that he needed to
withdraw the grievance and pursue his claim
with the Internal Affairs department. See id.
at *1-6. Here, plaintiff does not even allege
that prison officials made any statement or
took any action that caused him to
reasonably believe that these claims could
not be filed through the normal grievance
procedure.
Plaintiff has also made no plausible
argument that special circumstances exist
that warrant excusal from the requirement of
proper exhaustion. “Findings of special
circumstances
have
been
primarily
established where plaintiffs acted pursuant
to reasonable interpretations of the
regulations, thus preventing exhaustion.”
Winston v. Woodward, 05 CIV. 3385, 2008
WL 2263191, at *10 (S.D.N.Y. May 30,
2008). Plaintiff has not even argued, let
alone introduced any evidence, that a
reasonable interpretation of the SCCF
handbook would lead a prisoner to believe
that seeking medical attention was sufficient
to note a formal grievance regarding this
situation. Similarly, plaintiff fails to explain
why his grievance regarding corrections
officials placing him in housing with rival
gang members is a medical issue that could
Plaintiff’s suggestion that he believed
“dropping slips” for medical attention was
sufficient is also unpersuasive because the
PLRA “requires proper exhaustion.”
Woodford, 548 U.S. at 93. “Proper
exhaustion demands compliance with an
agency’s deadlines and other critical
procedural rules,” id. at 90, and thus,
“submitting sick call requests [does] not
properly exhaust [an agency’s] available
administrative remedies.” Hargrove v. Riley,
CV-04-4587, 2007 WL 389003, at *7
(E.D.N.Y. Jan. 31, 2007); see also
LaBombard v. Burroughs-Biron, No. 09CV-136, 2010 WL 2264973, at *6 (D. Vt.
April
30,
2010)
(Report
and
Recommendation) (holding that filing sick
3
Although not dispositive of the issues presented in
this case, the Court notes that plaintiff is familiar
with the proper procedure for filing a grievance, as he
has submitted four grievances related to other subject
matters. (See DeSimone Decl. ¶ 3; id. Ex. C.)
7
not be resolved through the established
grievance procedure.4
insufficient to warrant
hearing on this issue.5
Plaintiff’s new argument, not asserted in
his complaint or in his opposition to the
original motion, is that he tried to file a
grievance but that it disappeared. Plaintiff
does not provide any details regarding this
alleged attempt to exhaust, nor does he
introduce any evidence to support his claim.
Instead, he asserts in two conclusory
sentences in his filing, after the defendants’
motion was converted to a summary
judgment motion, that he tried to file a
grievance “but they just disappeared” and
that no action was taken on some other
unspecified grievances. (Letter, Aug. 1,
2013, ECF No. 39, at 2.) As a threshold
matter, it is unclear which grievances
plaintiff is referencing. In any event, a
conclusory claim that a grievance was lost
or ignored is insufficient to overcome the
PLRA’s exhaustion requirement. Instead, if
a plaintiff does not get a response to a
grievance in the time designated by the
grievance procedure – namely, five days in
the instant case – he should appeal the
decision or take some action to determine
what happened with respect to the
grievance. Here, plaintiff does not assert, or
even attempt to demonstrate, that he
followed up with prison officials or took any
action once he did not receive a written
response from the Grievance Coordinator
within five days as described in the Inmate
Handbook. (See DeSimone Decl. Ex. A.)
Therefore, that conclusory assertion cannot
be a basis for exhaustion, and is even
Numerous other courts have reached the
same
conclusion
under
analogous
circumstances. See, e.g., Harris v. Loverde,
08-CV-6069, 2011 WL 5080089, at *3-4
(W.D.N.Y. Oct. 26, 2011) (granting
defendants’ motion for summary judgment
when plaintiff stated that his grievance was
“misplaced” but provided insufficient
evidence to support his assertion);
LaBombard, 2010 WL 2264973, at *6
(“[T]he lack of a response did not excuse
him from moving to the next step in the
process, and eventually appealing to the
Commissioner, if necessary, prior to filing
suit”); George v. Morrison, No. 06 Civ.
3188, 2007 WL 1686321, at *3 (S.D.N.Y.
June 11, 2007) (“It is well-settled [] 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.” (citation
and internal quotation marks omitted));
Veloz v. New York, 339 F. Supp. 2d 505, 516
(S.D.N.Y. 2004) (“[P]laintiff’s allegation
that these particular grievances were
misplaced or destroyed by correctional
officers ultimately does not relieve him of
the requirement to appeal these claims to the
next level once it became clear to him that a
response to his initial filing was not
forthcoming.”);
accord
Martinez
v.
Williams, 186 F. Supp. 2d 353, 357
(S.D.N.Y. 2002); Waters v. Schneider, No.
5
an
evidentiary
If there were disputed issues of material fact
regarding plaintiff’s failure to exhaust, the Court
would hold a hearing before determining whether
plaintiff did exhaust or whether he is excused from
the PLRA’s exhaustion requirements. However,
because plaintiff has only made conclusory and
vague excuses, and he failed to appeal or follow up
with respect to any grievance that purportedly
“disappeared,” the Court concludes that there are no
disputed issues of material fact regarding plaintiff’s
failure to exhaust, and no hearing on this issue is
warranted.
4
If plaintiff had properly exhausted his claim
regarding his misdiagnosed medical condition (or if
plaintiff was excused from doing so), plaintiff’s
failure to exhaust his claim regarding his housing
placement would not require dismissal of the entire
action. See Jones, 549 U.S. at 219-224. However,
because plaintiff failed to properly exhaust both of
his claims, the entire complaint must be dismissed.
8
SO ORDERED.
01 CIV. 5217, 2002 WL 727025, at *2
(S.D.N.Y. Apr. 23, 2002).
Accordingly, because a liberal reading of
plaintiff’s complaint and other submissions
demonstrates that he did not exhaust his
administrative remedies as required by the
PLRA and that no reasonable explanation
exists for his failure to do so, defendants
have met their burden in proving that this
action should be dismissed. However,
plaintiff’s complaint will be dismissed
without prejudice. Plaintiff may re-file his
pleadings after attempting to comply with
the applicable exhaustion requirements, if
that is still possible. See Neal v. Goord, 267
F.3d 116, 123 (2d Cir. 2001) (“We have
recognized that failure to exhaust
administrative remedies is usually a curable,
procedural flaw that can be fixed by
exhausting those remedies and then
reinstituting the suit.” (citation and internal
quotation marks omitted)), overruled in part
on other grounds by Porter v. Nussle, 534
U.S. at 516; Bennett v. Wesley, 11 CIV.
8715, 2013 WL 1798001, at *7 (S.D.N.Y.
Apr. 29, 2013) (“Where, as here, a prisoner
has failed to exhaust his available
administrative remedies, the law is clear that
the appropriate disposition of the
unexhausted claims is dismissal without
prejudice.” (alteration, citation, and internal
quotation marks omitted)).
______________________
JOSEPH F. BIANCO
United States District Judge
Dated: September 3, 2013
Central Islip, NY
***
Plaintiff is proceeding pro se. The attorney
for the County Defendants is Dennis M.
Cohen, Suffolk County Attorney, by Arlene
S. Zwilling, H. Lee Dennison Building, P.O.
Box 6100, Hauppauge, New York 117880099. The attorney for the Peconic Bay
Medical Center is Andrew Leslie Zwerling,
Garfunkel Wild P.C., 111 Great Neck Road,
Suite 503, Great Neck, New York 11021.
IV. CONCLUSION
For the foregoing reasons, the Court
grants the County Defendants’ motion for
summary judgment and grants Peconic
Bay’s motion for summary judgment on the
ground that plaintiff has failed to exhaust his
administrative remedies. Accordingly, the
complaint is dismissed without prejudice.
The Clerk of the Court shall enter judgment
accordingly and close the case.
9
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