Torres v. Franklin Correctional Facility et al
Filing
27
MEMORANDUM DECISION AND ORDER: ORDERED that Lieutenant Gardner's motion to dismiss (Dkt. No. 9 ) is GRANTED and that all claims against him are dismissed without prejudice; and it is further ORDERED that Lieutenant Gardner is terminated as a party to this action; and it is further ORDERED that Torres, if he wishes to proceed with this action, must file a second amended complaint within thirty (30) days from the filing date of this Decision and Order, to reflect as defendants Ms. Jobin and any other identifiable Doe defendants; and it is further ORDERED that if Torres fails to timely file a second amended complaint in accordance with this Decision and Order, the Clerk shall enter judgment dismissing the action without prejudice. Signed by Chief Judge Gary L. Sharpe on 1/23/2012. (ptm) (Copy served on plaintiff by regular mail)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
JOSE TORRES,
Plaintiff,
9:11-cv-466
(GLS/RFT)
v.
CHARLES GARDNER et al.,
Defendants.
____________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Jose Torres
Pro Se
11-A-0260
Franklin Correctional Facility
P.O. Box 10
Malone, NY 12953
FOR THE DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224
CHARLES J. QUACKENBUSH
Assistant Attorney General
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Jose Torres commenced this action against
Lieutenant Charles Gardner and multiple John/Jane Doe defendants (“Doe
defendants”) under 42 U.S.C. § 1983, alleging violations of his Eighth
Amendment rights under theories of excessive force and denial of medical
treatment. (See Am. Compl., Dkt. No. 18.) Pending is Lieutenant
Gardner’s motion to dismiss. (Dkt. No. 9.) For the reasons that follow, the
motion is granted.
II. Standard of Review
The standard of review under Fed. R. Civ. P. 12(b)(6) is well
established and will not be repeated here.1 For a full discussion of the
standard, the court refers the parties to its previous opinion in Ellis v.
Cohen & Slamowitz, LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010).
III. Discussion
A.
Failure to Exhaust Administrative Remedies
Lieutenant Gardner seeks dismissal of Torres’ Amended Complaint
for failure to comply with the Prison Litigation Reform Act (PLRA) and
failure to state a claim upon which relief may be granted. (See Dkt. No. 9.)
Because Torres’ failure to exhaust his administrative remedies requires
1
Because Torres is proceeding pro se, the court will construe his Amended Complaint
liberally. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006).
2
dismissal, the merits of his pleadings need not be addressed.
Under the PLRA, a prisoner may not bring a section 1983 claim
relating to prison conditions “until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a). This 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.” Porter v. Nussle, 534 U.S.
516, 532 (2002). Exhaustion must occur before the plaintiff’s lawsuit is
filed. Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001) (“Subsequent
exhaustion after suit is filed therefore is insufficient.”), abrogated in part on
other grounds by Porter, 534 U.S. 516.
The Second Circuit has articulated three scenarios in which a
prisoner’s failure to exhaust his administrative remedies may not require
dismissal: where (1) administrative remedies were not in fact “available” to
the prisoner; (2) defendants failed to raise or preserve the affirmative
defense of non-exhaustion or their actions prevented the prisoner from
exhausting his administrative remedies; or (3) the prisoner has plausibly
alleged “special circumstances”—such as reasonable confusion as to a
regulation—which resulted in his failure to comply with administrative
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requirements. Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004);
Newman v. Duncan, No. 04-CV-395, 2007 WL 2847304, at *2-3 (N.D.N.Y.
Sept. 26, 2007). Torres is not entitled to benefit from any of these
exceptions.
First, Torres readily admits that New York’s well-established threestep Inmate Grievance Program (IGP) was available to him, and that he
availed himself of that program. (Am. Compl., Dkt. No. 18 at 3-4.); N.Y.
Comp. Codes R. & Regs. tit. 7, § 701.5 (2011). Torres’ fatal error,
however, is that he did not complete the IGP prior to bringing the present
action. (Am. Compl., Dkt. No. 18 at 4.) Specifically, he admits that his
appeal to the Central Office Review Committee (CORC)—the third and
final IGP step—was not filed until May 13, 2011, nearly a month after the
April 25, 2011 commencement of the instant suit. (Am. Compl., Dkt. No. 18
at 4; Compl., Dkt. No. 1.)
While Torres alleges that he was obstructed in his attempt to
complete the IGP, his allegations do not implicate the second exception.
Specifically, Torres claims that CORC impermissibly failed to render a
decision on his final appeal. (Dkt. No. 23 at 2.) As noted above, however,
Torres did not file his final appeal with CORC until nearly a month after he
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commenced this action. Torres makes no argument that his pursuit of
administrative remedies was obstructed prior to his bringing the instant suit.
Just as subsequent exhaustion after suit is filed cannot satisfy section
1997e(a), see Neal, 267 F.3d at 122, it follows that subsequent obstruction
by a defendant cannot absolve a plaintiff’s failure to exhaust administrative
remedies that remained unhindered at the time of filing.
Finally, Torres alleges no “special circumstances” which resulted in
his failure to comply with the IGP prior to commencing the present action.
Because Torres failed to comply with the IGP before bringing this suit, and
no exceptions to section 1997e(a) are available to him, dismissal as to
Lieutenant Gardner is appropriate.
Torres argues that, in light of his efforts to comply with the IGP,
dismissing his Amended Complaint against Lieutenant Gardner would be
judicially inefficient. (Dkt. No. 23 at 2.) While this may be true in Torres’
case, the Second Circuit has specifically rejected such an argument, noting
that “allowing prisoner suits to proceed, so long as the inmate eventually
fulfills the exhaustion requirement, undermines Congress’ directive [in
section 1997e(a)].” Neal, 267 F.3d at 123. Accordingly, Lieutenant
Gardner’s motion to dismiss is granted and Torres’ claims against him are
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dismissed without prejudice. Although all of Torres’ claims were filed on
the same date, only those claims against Lieutenant Gardner are
dismissed at this juncture because failure to exhaust administrative
remedies is an affirmative defense. Jones v. Bock, 549 U.S. 199, 211-12
(2007).
As Lieutenant Gardner is the only named defendant in this action, his
dismissal creates an untenable situation in which all remaining defendants
are unnamed. While Torres has been unable to ascertain the identities of
all Doe defendants, he states in a pending motion to compel discovery that
he has identified Jane Doe as Marilyn Jobin, a Registered Nurse at
Franklin Correctional Facility. (Dkt. No. 24 at 1.)
Torres is advised that, if he wishes to proceed with this action, he
must file a second amended complaint within thirty (30) days from the
filing date of this Decision and Order, to reflect as named defendants Ms.
Jobin and any other identifiable Doe defendants.2 Torres is cautioned that
no portion of his prior pleadings shall be incorporated into his second
amended complaint by reference; and all relevant information must be
2
Torres should take note that if he chooses to file a second Amended Complaint
instead of discontinuing the present suit and filing a new action, and the named defendants in
his second Amended Complaint assert the exhaustion affirmative defense, he will likely have
the claims against those defendants dismissed for the reasons articulated in this Order.
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included in the second amended complaint. Failure to file such an
amended complaint within the time frame provided will result in dismissal of
the action without prejudice without further Order of this court.
IV. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Lieutenant Gardner’s motion to dismiss (Dkt. No. 9)
is GRANTED and that all claims against him are dismissed without
prejudice; and it is further
ORDERED that Lieutenant Gardner is terminated as a party to this
action; and it is further
ORDERED that Torres, if he wishes to proceed with this action, must
file a second amended complaint within thirty (30) days from the filing
date of this Decision and Order, to reflect as defendants Ms. Jobin and any
other identifiable Doe defendants; and it is further
ORDERED that if Torres fails to timely file a second amended
complaint in accordance with this Decision and Order, the Clerk shall enter
judgment dismissing the action without prejudice; and it is further
ORDERED that the Clerk provide a copy of this Memorandum-Decision
and Order to the parties by mail and certified mail.
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IT IS SO ORDERED.
January 23, 2012
Albany, New York
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