Decayette v. Goord et al

Filing 44

REPORT AND RECOMMENDATIONS that the 36 MOTION for Summary Judgment filed by Martin, Michael Allard, Volpe, Sgt. Berry, Suggs, Glenn S. Goord, Meeks be Granted in Part and Denied in Part. Objections to R&R due by 4/14/2009 Case Review Deadline 4/20/2009. Signed by Magistrate Judge George H. Lowe on 3/31/09. [Report Recommendation and electronically available only cases served on Plaintiff via regular mail]. (Attachments: # 1, # 2, # 3, # 4, # 5, # 6, # 7 )(rjb, )

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A N G E L HERNANDEZ, Plaintiff, v. JOHN NASH, W a r d e n ; M I C H A E L SEPANEK, C a p t a in ; and KENNETH SHARLOW , Corrections Officer, FCI Ray Brook, D e fe n d a n ts. C iv il No. 9:00-CV-1564 (FJS/GLS) UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF N E W YORK 2 0 0 3 U.S. Dist. LEXIS 16258

S e p t e m b e r 10, 2003, Decided DISPOSITION: [*1] Recommended that defendants' m o tio n to dismiss complaint be granted and that c o m p la in t be dismissed without prejudice. th e defendants seeking dismissal of Hernandez's c o m p la in t for failure to state a claim upon which relief m a y be granted or, in the alternative, summary judgment d is m is s in g his complaint in all respects. In support of th e ir motion, the defendants assert a variety of grounds in c lu d in g , inter alia, Hernandez's failure to exhaust a v a ila b le administrative remedies. He has not responded to the defendants' motion which was filed more than nine m o n th s ago. B e c a u s e it is clear from Hernandez's complaint that h e has failed to avail himself of the internal a d m in is t r a t i v e remedies required to be exhausted prior to c o m m e n c e m e n t of suit, this court recommends dismissal o f his complaint on this basis, without prejudice, and fin d s it unnecessary to recommend conversion of the d e fe n d a n t s ' motion to one for summary judgment and/or to address the various other grounds raised by the d e fe n d a n ts in support of their motion. I . BACKGROUND The facts set forth in Hernandez's complaint, in s u p p o r t of his claims in this action, are concisely stated a n d [*3] exceedingly straightforward. 1 Hernandez a lle g e s that on or about August 21, 2000, while assigned to the Special Housing Unit ("SHU"), he was confronted b y his cell mate who requested that the two engage in s e x u a l acts. Compl. P. 4 (Dkt. No. 1). Hernandez asserts t h a t in response to that overture, he attempted to s u m m o n s the assistance of a correctional officer which r e s u lte d in Sharlow coming to his cell door. Id. After H e r n a n d e z explained the situation and requested that he b e moved, Sharlow allegedly responded that he did not h a v e the keys necessary to open his cell door, and told

COUNSEL: ANGEL HERNANDEZ, PLAINTIFF, Pro s e , Ray Brook, New York. F O R DEFENDANTS: JAMES C. W O O D S , AUSA., H O N . GLENN T. SUDDABY, United States Attorney, J a m e s T. Foley U.S. Courthouse, Albany, NY. JUDGES: GARY L. SHARPE, U.S. MAGISTRATE JU D G E . OPINION BY: GARY L. SHARPE O P IN IO N R E P O R T AND RECOM M E N D A T I O N Plaintiff, pro se, Angel Hernandez, a federal prison in m a te currently at the Federal Correctional Institute ( " F C I " ) in Ray Brook, New York, commenced this civil r ig h ts action to challenge an alleged failure on the part of p r is o n officials to protect him from physical injury. H e r n a n d e z 's claim stems from an altercation which o c c u r r e d on August 21, 2000, and involved his cell mate, a n d as a result, he suffered physical injury which r e q u ir e d medical attention. In his complaint, Hernandez a s s e r ts violations of his civil rights under [*2] theFifth, S ix th and Eighth Amendments, and seeks damages in the a m o u n t of $ 1,000,000. C u r r e n tly pending before the court is a motion by

Page 2 2 0 0 3 U.S. Dist. LEXIS 16258, * h im to "do what [you] have to do". Id. Based upon a c o n v e r s a t io n between Hernandez and an unnamed lie u te n a n t, he attributed the fact that Sharlow did not h a v e a key to open his cell door to a directive issued by d e fe n d a n ts Sepanek and Nash, that officers not carry k e y s within the SHU Tier late at night. Id. As a result of t h e incident, Hernandez alleges that he was assaulted by h is cell mate which resulted in an eye injury and required m e d ic a l attention, including stitches. 1 In their motion, the defendants have submitted c o n s i d e r a b l e detail concerning Hernandez's c r im in a l conviction and the basis for his c o n fin e m e n t at FCI Ray Brook as well as r e g a r d in g the incident at issue in this case. H o w e v e r , since this court finds that conversion of th e motion to one for summary judgment is u n n e c e s s a r y , it is inappropriate to include the fa c ts related in those documents. Instead, this c o u r t will limit it's focus to the facts set forth in H e r n a n d e z 's complaint. [*4] II. PROCEDURAL HISTORY Hernandez commenced this action on October 12, 2 0 0 0 , and has paid the required $ 150.00 filing fee (Dkt. N o . 1). In his complaint, he asserts violations of his civil r ig h ts under the Fifth, Sixth and Eighth Amendments, a s s e r ti n g in his first cause of action that Sharlow violated th o s e rights by exhibiting deliberate indifference to his s a fe ty and encouraging violence through his comments in r e s p o n s e to Hernandez's request for assistance. 2 Compl. P . 5 (Dkt. No. 1). In his second cause of action, H e r n a n d e z alleges participation by Sepanek and Nash in t h e constitutional infringement as a result of their im p le m e n t a tio n of "improper policies and adequate s u p e r v is io n of officers". Id. Hernandez seeks recovery of $ 1,000,000 as a result of the defendants' actions. F o llo w in g commencement of suit and the ensuing i n a c tio n on the part of Hernandez in pursuing the matter, C h ie f District Judge Frederick J. Scullin, Jr., issued an o r d e r on March 18, 2002, directing that Hernandez show c a u s e why the suit should not be dismissed based upon h is failure to arrange for proper service of the summons a n d complaint upon the three named defendants ( [*5] Dkt. No. 7). In response, Hernandez filed an affidavit d a te d April 16, 2002, expressing his belief that he had d o n e what was necessary to effectuate service and that s e r v ic e had, in fact, been effectuated in the case (Dkt. No. 8 ). 2 Although Hernandez's complaint purports to b e filed under 42 U.S.C. § 1983, this court will r e a d the complaint as raising claims under Bivens v . Six Unknown Agents of Federal Bureau of N a r c o t i c s , 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. C t. 1999 (1971), which recognized the existence o f a cognizable claim in certain instances for a lle g e d constitutional violations committed by fe d e r a l agents. In order to state a Bivens claim, a p la in tiff must allege a constitutional deprivation b y defendants acting under color of federal law. S o ic h e t v. Toracinta, 1995 U.S. Dist. LEXIS 1 1 6 9 3 , 93 Civ. 8858, 1995 W L 489434, at *3 ( S .D .N .Y . Aug. 16, 1995)(citing Barbera v. S m ith , 654 F. Supp. 386, 3 9 0 (S.D.N.Y. 1987)). Generally, case law u n d e r 42 U.S.C. § 1983 applies to Bivens cases. C h in v. Bowen, 833 F.2d 21, 24 (2d Cir. 1 9 8 7 )( q u o tin g Ellis v. Blum, 643 F.2d 68, 84 (2d C ir . 1981)). [*6] On May 13, 2002, this court found the e x is te n c e of good cause for Hernandez's failure to e ffe c tu a te service of process in a timely manner, and d ir e c te d the assistance of the United States Marshal to a c c o m p lis h that objective (Dkt. No. 9). Thereafter, s e r v ic e was accomplished with regard to each of the th r e e named defendants who executed service waivers (D k t. No. 14). I n response to H e r n a n d e z 's complaint, the d e fe n d a n ts have moved seeking, in the alternative, either d is m is s a l for failure to state a claim upon which relief m a y be granted, or summary judgment dismissing his c o m p la in t in its entirety (Dkt. Nos. 19-21). In their m o tio n , the defendants assert various grounds, including: 1 ) Hernandez's failure to exhaust available internal a d m in is tr a tiv e remedies, as required under 42 U.S.C. § 1 9 9 7 e (a ); 2) lack of personal involvement; and, 3) on the m e r its , based upon Hernandez's failure to allege and p r o v e deliberate indifference by defendants to his safety. T h e r e has been no response by Hernandez to the d e fe n d a n ts ' motion which was filed on December 12, 2002. T h e defendants' motion has been referred to this c o u r t for the issuance of a report and [*7] recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) a n d Local Rule 72.3(c). See also, Fed. R. Civ. P. 72(b). I I I . DISCUSSION A. Legal Effect Of Plaintiff's Failure To Oppose D e f e n d a n t s ' M o t io n T h e first issue to be addressed is the legal s ig n ific a n c e , if any, of Hernandez's failure to oppose the d e fe n d a n ts ' summary judgment motion, and specifically, w h e th e r such a failure automatically entitles the d e fe n d a n ts to dismissal based upon their motion. L o c a l Rule 7.1(b)(3) provides that W h e r e a properly filed motion is u n o p p o s e d and the Court determines that

Page 3 2 0 0 3 U.S. Dist. LEXIS 16258, * th e moving party has met its burden d e m o n s tr a tin g entitlement to the relief r e q u e s te d therein, failure by the nonm o v in g party to file or serve any papers as r e q u ir e d by this Rule shall be deemed by th e court as consent to the granting or d e n ia l of the motion, as the case may be, u n le s s good cause is shown. I d . (citing Cooper v. Pate, 378 U.S. 546, 546, 12 L. Ed. 2 d 1030, 84 S. Ct. 1733 (1964) (per curiam)). W h e n determining whether a complaint states a c a u s e of action, a [*10] court should afford great l ib e r a lity to pro se litigants. Platsky v. Central I n te llig e n c e Agency, 953 F.2d 26, 28 (2d Cir. 1991) ( c ita tio n omitted). In fact, the Second Circuit has held th a t a court should not dismiss without granting leave to a m e n d at least once if there is any indication that a valid c la im might be stated. Branum v. Clark, 927 F.2d 698, 7 0 4 - 0 5 (2d Cir.1991); see also, Fed. R. Civ. P. 15(a) ( le a v e to amend "shall be freely given when justice so r e q u ir e s " ) . "These liberal pleading rules apply with p a r tic u la r stringency to complaints of civil rights v io la tio n s ." Phillip v. University of Rochester, 316 F.3d 2 9 1 , 2003 WL 139522 (2d Cir. Jan. 21, 2003). C . Failure To Exhaust The primary thrust of the defendants' motion, at least to the extent that it challenges the facial sufficiency of H e r n a n d e z 's complaint, surrounds his conceded failure to e x h a u s t available administrative remedies. T h e Prison Litigation Reform Act of 1996 ( " P L R A " ) , Pub. L. No. 104-134, 110 Stat. 1321 (1996), r e q u i r e s that "no action shall be brought with respect to p r is o n conditions under section 1983 of this title, or any o th e r Federal law, [*11] by a prisoner confined in any j a il, prison, or other correctional facility until such a d m in is tr a tiv e remedies as are available are exhausted." 4 2 U.S.C. § 1997e(a). Moreover, under the PLRA, a p r is o n e r pursuing a federal lawsuit, including a Bivens a c tio n like this one, is required to exhaust the available a d m in is tr a tiv e remedies before a court may hear his or h e r case. See Porter v. Nussle, 534 U.S. 516, 524-25, 152 L . Ed. 2d 12, 122 S. Ct. 983 (2002). The Court has fu r th e r held that the PLRA requires administrative e x h a u s tio n even where the grievance process does not p e r m it award of money damages and the prisoner seeks o n ly money damages, so long as the grievance tribunal h a s authority to take some responsive action. See Booth v . Churner, 532 U.S. 731, 741, 149 L. Ed. 2d 958, 121 S. C t. 1819 (2001). However, "a dismissal of an action for fa ilin g to comply with the PLRA is without prejudice." M o r a le s v. Mackalm, 278 F.3d 126, 131 (2d Cir. 2002). T h e available administrative remedies for a Bivens c la im , consist of a four-step set of procedures set forth in th e Bureau Of Prisons' Administrative Remedy [*12] Program, 28 C.F.R. § 542, which include: (1) attempting in fo r m a l resolution with prison staff; (2) submitting a fo r m a l written "Administrative Remedy Request" to the w a r d e n within twenty days of the triggering event; (3) a p p e a lin g the warden's decision to the appropriate r e g io n a l director within twenty days of the formal request b e in g denied; and, (4) appealing the Regional Director's d e c is i o n to the BOP General Counsel's Office within

Even while recognizing that pro se plaintiffs are entitled to special latitude when defending against summary j u d g m e n t motions (see Jemzura v. Public Service C o m m 'n , 961 F. Supp. 406, 415 (N.D.N.Y. 1997) ( M c A v o y , C.J.)), courts in this district have [*8] found it a p p r o p r ia te to grant a dispositive motion pursuant to L o c a l Rule 7.1(b)(3) based upon a pro se plaintiff's fa ilu r e to respond. Robinson v. Delgado, 1998 U.S. Dist. L E X I S 7903, 96-CV-169, 1998 W L 278264, at *2 ( N .D .N .Y . May 22, 1998) (Pooler, J. and Hurd, M.J.); C o tto v. Senkowski, 1997 U.S. Dist. LEXIS 16462, 95C V -1 7 3 3 , 1997 W L 665551, at *1 (N.D.N.Y. Oct. 23, 1 9 9 7 ) (Pooler, J. and Hurd, M.J.); Wilmer v. Torian, 980 F . Supp. 106, 106-07 (N.D.N.Y. 1997) (Pooler, J. and H u r d , M.J.). As can be seen by the face of the rule, b e fo r e an opposed motion can be granted, the court must r e v ie w the motion to determine whether it is facially m e r ito r io u s . See Allen v. Comprehensive Analytical G r o u p , Inc., 140 F. Supp.2d 229, 231-32 (N.D.N.Y. 2 0 0 0 ) (Scullin, C.J.); Leach v. Dufrain, 103 F. Supp.2d 5 4 2 , 545-46 (N.D.N.Y. 2000) (Kahn, J.). B . Rule 12(b)(6) Standard of Review A s previously noted, the defendants' motion is styled a s seeking alternative relief, either in the form of d is m is s a l of Hernandez's complaint for failure to state a c o g n i z a b le claim or, in the alternative, summary j u d g m e n t in their favor. Because Hernandez has not r e c e iv e d notice [*9] of the court's intention to treat the m o t i o n as one for summary judgment, and hence an o p p o r tu n ity to respond in that context, and in light of the fa c t that the portion of the defendants' motion seeking d is m is s a l for failure to exhaust available administrative r e m e d ie s is susceptible of resolution through resort to H e r n a n d e z 's complaint, which acknowledges this failure, th is court recommends the motion be treated in the first in s ta n c e as seeking dismissal for failure to state a claim u p o n which relief may be granted. A court may not dismiss an action pursuant to Rule 1 2 (b )(6 ) unless "it appears beyond doubt that the plaintiff c a n prove no set of facts in support of his claim which w o u ld entitle him to relief." Cohen v. Koenig, 25 F.3d 1 1 6 8 , 1171-72 (2d Cir. 1994) (citing, inter alia, Conley v . Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 9 9 (1 9 5 7 )). In deciding a 12(b)(6) motion, the court must a c c e p t the material facts alleged in the complaint as true.

Page 4 2 0 0 3 U.S. Dist. LEXIS 16258, * th ir ty days. See 28 C.F.R. §§ 542.13(a), 542.14(a), 5 4 2 .1 5 (a ) I n his complaint, Hernandez acknowledges that FCI R a y Brook had an internal grievance procedure. H o w e v e r , he admits that he failed to file a grievance. ( D k t. No. 1, P. 4). Hernandez explains this failure by s im p ly stating: "I am seeking monetary damages that c a n n o t be addressed via the grievance program." U n fo r tu n a t e l y for him, however, it is now well e s ta b lis h e d that the mere non-existence of monetary r e lie f as a remedy which is available to an inmate th r o u g h the grievance process does not excuse a plaintiff fr o m first pursuing that avenue before resorting to the in s titu tio n of suit in a federal court. Because Hernandez's c o m p la in t on its face readily reveals [*13] a critical fa ilu r e on his part to exhaust available administrative r e m e d ie s , this court finds that the defendants are entitled to dismissal of Hernandez's complaint, without prejudice, b a s e d upon his failure to exhaust available administrative r e m e d ie s . 3 3 In their motion papers, the defendants suggest th a t Hernandez's failure to exhaust divests this c o u r t of subject matter jurisdiction. "District c o u r ts within this circuit have reached contrary c o n c lu s io n s about the nature of the PLRA's e x h a u s tio n requirement." Delio v. Morgan, 2003 U .S . Dist. LEXIS 9974, 00 Civ.7167, 2003 W L 2 1 3 7 3 1 6 8 , at *2 (S.D.N.Y. June 13, 2003) (citing a n d comparing Arnold v. Goetz, 245 F. Supp.2d 5 2 7 , 531-533 (S.D.N.Y.2003) (collecting cases a n d joining "chorus of voices" concluding that the P L R A 's exhaustion requirement is an affirmative d e fe n s e and not a jurisdictional prerequisite), with H a r r is v. Totten, 244 F. Supp.2d 229, 231 (S .D .N .Y . 2003) ("when a defendant moves for d is m is s a l on the ground that the plaintiff has fa ile d to exhaust administrative remedies, the d e fe n d a n t is raising a challenge to the court's j u r is d ic tio n " ) , and Long v. Lafko, 2001 U.S. Dist. L E X I S 10808, 00 Civ.723, 2001 W L 863422, at * 2 (S.D.N.Y. July 31, 2001) (plaintiff's failure to e x h a u s t all administrative remedies "deprives this c o u r t of subject matter jurisdiction")). However, th is court finds that under either a jurisdictional o r affirmative defense interpretation of the PLRA e x h a u s t io n requirement, this case must be d is m is s e d because the defendants have asserted th e defense and Hernandez's failure to exhaust a p p e a r s on the face of the pleadings. [*14] IV. SUM M A R Y AND RECOM M E N D A T I O N It is by now well-established that prisoner claims of th e nature now asserted by Hernandez in this action are s u b j e c t to the PLRA's exhaustion of remedies r e q u ir e m e n t, notwithstanding unavailability of monetary r e lie f through that avenue. Since Hernandez, by his own a d m is s io n , failed to exhaust available administrative r e m e d ie s by filing a grievance and pursuing it through th e appropriate channels at FCI Ray Brook before c o m m e n c e m e n t of this action, his complaint is subject to d i s m i s s a l , without prejudice. In light of this d e te r m in a t i o n , this court finds that conversion is in a p p r o p r ia te and will not address the various other a r g u m e n ts raised by the defendants, many of which may u ltim a te ly be determined to be meritorious should H e r n a n d e z choose to reinstitute this action following his p u r s u it of the matter through the available grievance p ro c e ss. B a s e d upon the foregoing, it is hereby R E C O M M E N D E D that the defendants' motion to d i s m is s Hernandez's complaint for failure to state a claim u p o n which relief may be granted (Dkt. No. 19) be G R A N T E D and that Hernandez's complaint be D I S M I S S E D , without prejudice, and that [*15] the d e fe n d a n ts ' motion, in the alternative, for summary j u d g m e n t (Dkt. No. 19) be DENIED as moot, in light of th is determination. N O T I C E : Pursuant to 28 U.S.C. § 636(b)(1), the p a r tie s have TEN (10) DAYS ten days within which to file written objections to the foregoing report. Such o b j e c tio n s shall be filed with the Clerk of the Court. F A I L U R E TO OBJECT TO TH I S REPORT W ITH IN T E N D A Y S W IL L P R E C L U D E A P P E L L A T E REVIEW . 28 U.S.C. § 636(b)(1); Fed. R. C iv . P. 6(a), 6(e), 72; Roldan v. Racette, 984 F.2d 85 (2d C ir . 1993). I t is further ORDERED that the Clerk of the Court s e r v e a copy of this Report and Recommendation upon th e parties by regular mail. D a te d : September 10, 2003 G a r y L. Sharpe U .S . Magistrate Judge