Greene v. Desousa et al

Filing 26

MEMORANDUM & ORDER granting 22 Motion to Dismiss for Failure to State a Claim. SO ORDERED that the Court grants defendants' motion to dismiss. Plaintiff's claims are dismissed with prejudice. The Clerk of the Court is directed to close the case. CM to pro se plaintiff. Ordered by Judge Sandra J. Feuerstein on 6/21/2016. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------X
DANYELL GREENE,
Plaintiff,
-against-

FILED 
CLERK 

6/21/2016 12:57 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

MEMORANDUM & ORDER
14-CV-6290 (SJF) (AYS)

DESOUSA, CORRECTION OFFICER and
KRUTE, SERGEANT in their individual
capacities,
Defendants.
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FEUERSTEIN, District Judge:
Plaintiff pro se Danyell Greene (“Greene” or “plaintiff”) commenced this action pursuant
to 42 U.S.C. § 1983 against defendants Correction Officer Desousa (“Desousa”) and Sergeant
Krute (“Krute,” and collectively “defendants”) on October 22, 2014. The complaint concerns
events that occurred during plaintiff’s confinement at the Nassau County Correctional Center
(“NCCC”). Presently before the Court is defendants’ motion to dismiss the complaint pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Motion, Docket Entry (“DE”) [22].
Plaintiff has not opposed the motion. For the reasons set forth herein, the motion is granted.
I. BACKGROUND
The factual allegations are taken from the complaint and are assumed to be true for
purposes of this motion only. Greene filed a complaint on October 22, 2014 using the Eastern
District of New York Civil Rights Complaint, 42 U.S.C. § 1983 form. Compl. DE [1]. She
claims that on December 5, 2013, she was brought to the NCCC and placed in lock-in status by
defendant Desousa “because of her hair weave.” Compl. ¶ IV. She further alleges as follows:

Desousa stated take out your hair weave. Claimant never refused to take
out hair weave. She stated to Correction Officer Desousa that she needed
hair bonding removal to take her hair weave out. Correction Officer
Desousa stated we don’t carry that and once it’s removed you will be let
out of lock in. Claimant removed her hair weave on December 8, 2013
without the hair bonding removal where she has big bald spots.
Compl. ¶ IV. Plaintiff claims she was “locked in for 22 hours a day from December 5, 2013 to
December 15, 2013.” Id.
Plaintiff further alleges that Desousa was “malicious and vindictive” and that Sergeant
Krute authorized the lock-in. Compl. ¶ IV. In addition, NCCC is “blatantly prejudice[d]
towards the color of my skin due to the fact that majority of African American women wear hair
weaves. For [NCCC] to enforce a rule stating no hair weaves is against the claimant ethnicity.”
Id. Plaintiff claims to have bald spots for nine (9) months. Id. She claims that defendants’
actions have violated her rights under the Eighth and Fourteenth Amendments and seeks
compensation in an unspecified amount for her hair loss, her embarrassment, and each day of her
lock-in, plus an additional reimbursement of $5.00 taken from her account.
Plaintiff acknowledges in her complaint that there is a grievance procedure in place at
NCCC and indicates that she did not utilize the procedure because she “was naïve to prison
regulations.” Compl. ¶ II.D. Although she “asked Officer Desousa can I at least have hair
conditioner and she said no,” she does not allege that she brought, or attempted to bring, her
complaints to the attention of anyone at NCCC. Id. ¶ II.F.
On July 1, 2015, defendants served their motion to dismiss and docketed a certificate of
service indicating service upon plaintiff at the NCCC. See DE [17]. At a conference held on
January 7, 2016, Greene, who had been released from custody, represented that she had not

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received a copy of defendants’ motion to dismiss.1 Defendants served her with a copy of the
motion at the conference, and the Court directed plaintiff to serve her opposition by February 8,
2016. See Minute Order, DE [21]. On June 7, 2016, defendants filed their motion to dismiss.
According to defendants, they never received any opposition from plaintiff and thus filed the
motion as unopposed. See DE [23]. Plaintiff has not filed any materials directly, nor has she
contacted the Court in any way.
II. DISCUSSION
A. Legal Standards
Defendants move to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. To survive a motion to dismiss pursuant to Rule 12, a complaint must set forth
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.
1937, 1949 (2009). But, a pleading “that offers only ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at
555, 127 S. Ct. at 1965). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid
of ‘further factual enhancement.” Id. (quoting Twombly, 550 U.S. at 557, 127 S. Ct. at 1966)
Thus, while detailed factual allegations are unnecessary, a complaint must contain more than an
“unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (citing Twombly, 550 U.S. at
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Mail sent by the Court in November 2015 and addressed to plaintiff at NCCC was returned and
marked “Return to Sender/Discharged” in December 2015. See DE [19], [20]. At the conference,
plaintiff provided a new mailing address and the docket was updated accordingly.

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555, 127 S. Ct. at 1964 (internal citations omitted)).
In reviewing a motion to dismiss, the Court must accept the factual allegations set forth in
the complaint as true and draw all reasonable inferences in favor of the non-moving party. See
LaFaro v. New York Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir. 2009). Where the
complaint is filed by a pro se litigant, the court must “interpret the complaint liberally to raise the
strongest claims that the allegations suggest.” Rosen v. N. Shore Tower Apartments, Inc., No.
11-CV-00752, 2011 WL 2550733, at *2 (E.D.N.Y. June 27, 2011) (citing Cruz v. Gomez, 202
F.3d 593, 597 (2d Cir. 2000)). “Even in a pro se case, however . . . threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Chavis
v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal quotation and citation omitted).
B.

Failure to Exhaust
Defendants’ contend that the complaint should be dismissed for plaintiff’s failure to

exhaust her administrative remedies as required by the Prison Litigation Reform Act of 1995
(“PLRA”), which provides in part that “[n]o action shall be brought 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). “There is no question that exhaustion is mandatory under the
PLRA and that unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199,
211, 127 S. Ct. 910 (2007). Proper exhaustion requires the inmate to have proceeded through all
levels of review available to him under the grievance process, see Rivera v. Anna M. Kross
Center, No. 10 Civ. 8696, 2012 WL 383941, at *3 (S.D.N.Y. Feb. 7, 2012), and exhaustion
“must be completed before suit is filed.” Burgos v. Craig, 307 F. App’x 469, 470 (2d Cir. 2008).
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The PLRA exhaustion requirement applies even though plaintiff is no longer incarcerated
because she was incarcerated at the time she filed this lawsuit. See Rivera, 2012 WL 383941, at
*2.
However, “failure to exhaust is an affirmative defense under the PLRA,” and “inmates
are not required to specially plead or demonstrate exhaustion in their complaints.” Jones, 549
U.S. at 216. Although exhaustion is “generally not amenable to resolution by way of a motion to
dismiss,” Sloane v. Mazzuca, No. 04-CV-8266, 2006 WL 3096031, at *4 (S.D.N.Y. Oct. 31,
2006) (internal quotation and citation omitted)), failure to exhaust administrative remedies is an
appropriate basis for dismissal under Rule 12(b)(6) “where nonexhaustion is apparent from the
face of the complaint.” Gaines v. Armor Health Care, Inc., No. 12-CV-5663, 2013 WL 6410311,
at *2 (E.D.N.Y. Dec. 9, 2013) (quoting Roland v. Smith, 907 F. Supp. 2d 385, 388 (S.D.N.Y.
2012) (citation omitted)). Even where a plaintiff’s failure to exhaust administrative remedies is
apparent from the complaint, such a failure may be excused if: (1) the administrative remedies
were not in fact available to plaintiff; (2) defendants forfeited the affirmative defense by failing
to raise it or are estopped from raising it by its actions; or (3) “special circumstances” justify
plaintiff’s failure to exhaust. See Messa v. Goord, 652 F.3d 305, 309 (2d Cir. 2011) (citing
Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004)).2
It is clear from the complaint that plaintiff did not exhaust her claim prior to instituting
this lawsuit. She acknowledges the existence of a grievance procedure at NCCC, indicates that
2

The Second Circuit has declined to rule on the extent to which the Hemphill exceptions remain
valid after the Supreme Court’s decision in Woodford v. Ngo, 548 U.S. 81, 126 S. Ct. 2378 (2006). See
Amador v. Andrews, 655 F.3d 89, 102 (2d Cir. 2011). As such, courts in this District continue to analyze
the potential excuses to non-exhaustion. See, e.g., Schiff v. Suffolk Cty. Police Dep’t,No. 12-CV-1410,
2015 WL 1774704, at *9 (E.D.N.Y. Apr. 20, 2015).

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she did not file a grievance, and explains only that she “was naïve to prison regulations.” Compl.
¶ II. Her statement of claim does not contain any suggestion that she attempted to bring her
complaints to anyone within NCCC at any time during her confinement, or that she was in any
way prevented from raising her complaints. As such, her allegations cannot be construed to
implicate any of the excuses for failure to exhaust. Additionally, defendants’ motion clearly put
plaintiff on notice that her failure to exhaust administrative remedies could prevent her from
moving forward with the complaint, and provided her with an opportunity to put forth an
argument that her non-exhaustion should be excused. She did not, however, take advantage of
that opportunity and failed to oppose the motion.
As plaintiff’s failure to exhaust is apparent from the face of the complaint, defendants’
motion to dismiss for failure to comply with the PLRA is granted. Whether dismissal should be
with or without prejudice depends upon plaintiff’s ability to cure what is “often a temporary,
curable, procedural flaw.” Snider v. Melindez, 199 F.3d 108, 111 (2d Cir. 1999). Where a
plaintiff may cure the defect by pursuing administrative procedures to their conclusion and then
reinstituting her suit, dismissal without prejudice is appropriate. See, e.g., Berry v. Kerik, 366
F.3d 85, 87 (2d Cir. 2004); Giano v. Goord, 250 F.3d 146, 151 (2d Cir. 2001). Where the inmate
is no longer in custody, however, and thus the administrative remedies are no longer available to
her, dismissal with prejudice is appropriate. See e.g., Prescott v. Annetts, No. 09 Civ. 4435, 2010
WL 3020023, at *3 (S.D.N.Y. July 22, 2010) (when a plaintiff is released from custody during
the pendency of the action, dismissal should be with prejudice “if the plaintiff had ‘ample
opportunity’ to exhaust administrative remedies before being released but failed to do so” (citing
Berry, 366 F.3d at 88)). As plaintiff is no longer in custody at the NCCC and she can no longer
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exhaust administrative remedies, the complaint is dismissed with prejudice.
The Second Circuit has clearly indicated that “when addressing a pro se complaint, a
district 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.” Thompson v.
Carter, 284 F.3d 411, 416 (2d Cir. 2002) (internal quotation and citation omitted). Amendment
of the complaint would not cure the defect in plaintiff’s case and thus would be futile.
Accordingly, the complaint is dismissed without leave to amend.
III. CONCLUSION
For the reasons set forth above, the Court grants defendants’ motion to dismiss.
Plaintiff’s claims are dismissed with prejudice. The Clerk of the Court is directed to close the
case.

SO ORDERED

/s/
SANDRA J. FEUERSTEIN
United States District Judge
Dated: Central Islip, New York
June 21, 2016

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