Henry v. Liberty et al

Filing 22

DECISION AND ORDER: ORDERED, that Magistrate Judge Peebles' 20 Report and Recommendation is ADOPTED in its entirety. ORDERED that Defendants' 16 Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is DENIED without prejudice. Signed by U.S. District Judge Mae A. D'Agostino on 9/29/16. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
PAUL HENRY,
Plaintiff,
vs.

9:15-cv-01108
(MAD/DEP)

C.O. MATTHEW L. LIBERTY;
C.O. JUSTIN M. REIL; AND
C.O.S JOHN DOE
Respondent.
____________________________________________
APPEARANCES:

OF COUNSEL:

PAUL HENRY
07-A-1752
Attica Correctional Facility
Box 149
Attica, New York 14011
Plaintiff Pro Se
ERIC T. SCHNEIDERMAN,
ATTORNEY GENERAL OF
THE STATE OF NEW YORK
The Capitol
Albany, New York 12224
Attorneys for Respondent

RACHEL M. KISH, AAG

Mae A. D'Agostino, U.S. District Judge:
ORDER
Paul Henry ("Plaintiff"), currently incarcerated at Attica Correctional Facility in Attica,
New York, brings this civil rights action as a pro se litigant, pursuant to 42 U.S.C. § 1983.
See Dkt. No. 1 at ¶ 1. Correction Officers Matthew L. Liberty and Justin M. Reil (collectively
"Defendants") have moved to dismiss Plaintiff's complaint pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure ("Rule 12(b)(6)") for failure to state a claim upon which relief
can be granted. See Dkt. No. 16. On July 18, 2016, Magistrate Judge David E. Peebles issued a

Report and Recommendation, recommending that Defendants' motion to dismiss be denied
without prejudice to renew at a later procedural juncture. See Dkt. No. 20. The Parties have not
filed any objections to the Report and Recommendation.
Plaintiff alleges that, on October 28, 2012, Defendants and ten other correction officers
assaulted him at the Clinton Correctional Facility, which caused traumatic injuries to his head,
chest, back, torso, lower extremities, and genitalia. See Dkt. No. 1 at ¶ 6. Plaintiff's injuries
required hospitalization for several days. See id. Plaintiff commenced this action on September
14, 2015. See Dkt. No. 1. In his complaint, Plaintiff claims that Defendants' actions violated his
Eighth Amendment rights to be free from cruel and unusual punishment. See id. at ¶ 7. Plaintiff
states in the complaint that he did not file a grievance regarding the alleged assault. See id. at ¶ 4.
Defendants move to dismiss Plaintiff's complaint contending that Plaintiff failed to exhaust his
administrative remedies. See Dkt. No. 16-1. According to Defendants, Plaintiff did not utilize
the prison grievance procedure that was available to him prior to commencing this Section 1983
action, which is in violation of the Prison Litigation Reform Act of 1996 ("PLRA"), 42 U.S.C. §
1997e(a). See Dkt. No. 16-1 at 2-6. Plaintiff opposed the motion claiming that he was not
required to grieve the incident because it was "non-grievable" pursuant to "DOCCS Directive
Number 3375R."1 See Dkt. No. 18 at 7-8. Plaintiff also argued that, during the grievance period,
he was hospitalized due to his injuries from the assault and then transferred to the special housing
unit ("SHU"). See id. While in SHU, the correction officers would not provide him with forms
upon his request, according to Plaintiff. See id.

"[T]he mandate to read the papers of pro se litigants generously makes it appropriate to
consider a plaintiff's papers in opposition to a defendant's motion to dismiss as effectively
amending the allegations of the plaintiff's complaint, to the extent that those factual assertions are
consistent with the allegations of the plaintiff's complaint." Cusamano v. Sobek, 604 F. Supp. 2d
416, 461 (N.D.N.Y. 2009).
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In his Report and Recommendation, Magistrate Judge Peebles recommends that
Defendants' motion be denied without prejudice to renew at a later procedural juncture. See Dkt.
No. 20. Specifically, Magistrate Judge Peebles found that there is no merit to Plaintiff's first
argument that a "DOCCS Directive" excuses Plaintiff's failure to exhaust administrative remedies
because the directive cited is specific to City of New York Department of Correction, which is
not inclusive of Attica Correctional Facility. See id. However, Magistrate Judge Peebles found
that, accepting Plaintiff's statements as true, Plaintiff was denied access to the Inmate Grievance
Program ("IGP") when the correction officers would not provide him with the grievance forms in
SHU. See id. (citing Manon v. Albany County, No. 11–CV–1190, 2012 WL 6202987, *5
(N.D.N.Y. Oct. 9, 2012) (Hummel, M.J.), adopted by 2012 WL 6202984 (Suddaby, J.)).
Accordingly, Magistrate Judge Peebles concluded that, at this early stage in the proceeding,
Defendants are unable to establish that the IGP was available to Plaintiff prior to the
commencement of this action. See id. at 16.
In reviewing a report and recommendation, a district court "may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. §
636(b)(1)(C). When a party makes specific objections to a magistrate judge's report, the district
court engages in de novo review of the issues raised in the objections. See id.; Farid v. Bouey,
554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008). When a party fails to make specific objections, the
court reviews the magistrate judge's report for clear error. See Farid, 554 F. Supp. 2d at 307; see
also Gamble v. Barnhart, No. 02-CV-1126, 2004 WL 2725126, *1 (S.D.N.Y. Nov. 29, 2004).
Failure to object timely to any portion of a magistrate judge's report operates as a waiver of
further judicial review of those matters. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993)

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(quoting Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989)). Here, the
Parties have not filed any objections to the Report and Recommendation.
"[I]n a pro se case, the court must view the submissions by a more lenient standard than
that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F. Supp. 2d 289,
295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d
652 (1972)) (other citations omitted). The Second Circuit has opined that the court is obligated to
"make reasonable allowances to protect pro se litigants" from inadvertently forfeiting legal rights
merely because they lack a legal education. Govan v. Campbell, 289 F. Supp. 2d 289, 295
(N.D.N.Y. 2007) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). "However, this does
not mean that a pro se litigant is excused from following the procedural requirements of summary
judgment. See id. at 295 (citing Showers v. Eastmond, 00 CIV. 3725, 2001 WL 527484, *1
(S.D.N.Y. May 16, 2001)).
In the present matter, having carefully reviewed Magistrate Peebles' Report and
Recommendation, the Parties' submissions, and the applicable law, the Court concludes that
Magistrate Judge Peebles correctly determined that Defendants are unable to establish their
affirmative defense that Plaintiff did not exhaust his administrative remedies prior to commencing
this action. To be sure, PLRA "requires an inmate to exhaust all available administrative
remedies prior to bringing a federal civil rights action." Brooks v. Rock, No. 9:11-cv-1171, 2014
WL 1292232, *8 (N.D.N.Y. Mar. 28, 2014); see also 42 U.S.C. § 1997e(a); Ross v. Blake, 136 S.
Ct. 1850, 1856 (2016). However, there is "one significant qualifier: the remedies must indeed be
'available' to the prisoner." See Ross, 136 S. Ct. at 1856, 1858 (stating that, under PLRA, an
inmate must exhaust available remedies, "but need not exhaust unavailable ones."). Where, as

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here, a plaintiff claims that the grievance process was unavailable to him, the Court agrees with
Magistrate Judge Peebles that it would be improper to grant Defendants' motion to dismiss.
Accordingly, the Court hereby
ORDERS that Magistrate Judge Peebles' Report and Recommendation is ADOPTED in
its entirety; and the Court further
ORDERS that Defendants' motion to dismiss pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure is DENIED without prejudice; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on all parties in
accordance with the Local Rules; and the Court further
IT IS SO ORDERED.
Dated: September 29, 2016
Albany, New York

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