Rivera v. Schriro et al

Filing 33

OPINION re: 31 MOTION to Dismiss filed by Sherrel Jones, Dora Schriro. For the reasons stated above, Defendants' motion to dismiss is granted. This order resolves the motion located at Doc. No. 31. SO ORDERED.(Signed by Judge Thomas P. Griesa on 9/16/2013) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------- x
:
RUBEN RIVERA,
:
:
Plaintiff,
:
:
– against –
:
:
SHERREL JONES, civilian cook; DORA
:
SCHRIRO, Commissioner of NYC DOC, et :
al.,
:
:
Defendants.
:
--------------------------------------------- x

12 Civ. 1331 (TPG)
OPINION

Pro se plaintiff Ruben Rivera brings this action under 42 U.S.C.
§ 1983 against Sherrel Jones, a civilian cook, and Dora Schriro,
Commissioner of the New York City Department of Correction (“DOC”),
seeking damages and injunctive relief for alleged violations of his
constitutional rights. Rivera alleges that defendants denied him Kosher
meals and, consequently, denied him the opportunity to exercise his
religious beliefs during Chanukah.
Defendants now move to dismiss the case pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure on the grounds that: 1)
Rivera failed to exhaust his administrative remedies, and 2) Rivera fails
to state a Monell claim against Schriro, whom he has sued in her official
capacity.
Rivera has failed to respond to the motion to dismiss.

For the following reasons, defendants’ motion to dismiss is
granted.
Background
Rivera alleges that since November 8, 2011, while he was
incarcerated at the Manhattan Detention Center (“MDC”), Jones has
refused to provide him with kosher meals. As a result, Rivera claims that
he was unable to exercise his religious beliefs during Chanukah. Rivera
also claims that Jones’ actions caused him to lose fifteen pounds,
experience difficulty concentrating, and suffer mental anguish and
insomnia.
Rivera alleges that he filed a grievance at the MDC, “made contact”
with Warden Colon, and spoke with the MDC’s rabbi. However, none of
these steps resolved the issue to Rivera’s satisfaction. As a result of
these alleged actions, Rivera seeks money damages in the amount of
$500,000, injunctive relief, and the appointment of a full-time rabbi at
the MDC.
Discussion
A. Standard of Review
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a
complaint must plead sufficient facts “to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007); Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). In deciding such a
motion, the court must accept as true the facts alleged in the complaint,

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but it should not assume the truth of its legal conclusions. Iqbal, 556
U.S. at 678-79. Notwithstanding the heightened pleading standards
created by Iqbal and Twombly, the court must draw all reasonable
inferences in the plaintiff's favor and must provide pro se plaintiffs a
particularly liberal reading. Lopez v. Jet Blue Airways, 662 F.3d 593,
596 (2d Cir. 2011). When considering pro se complaints, the court
should only dismiss for failure to state a claim “if it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Estelle v. Gamble, 429 U.S. 97, 106
(1976).
B. Exhaustion
Under the Prison Litigation Reform Act (“PLRA”), a prisoner must
exhaust all available administrative remedies before bringing a federal
action regarding prison conditions. 42 U.S.C. § 1997e. DOC has a fourstep grievance process known as the Inmate Grievance Resolution
Program (“IGRP”). First, an inmate must submit his grievance to the
Inmate Grievance Resolution Committee (“IGRC”). If no resolution is
reached within five days of the submission or if the inmate disagrees with
the resolution, the inmate can request a hearing. Second, if the inmate
still feels aggrieved, he can appeal to the Warden of his facility. Third,
the inmate can appeal an adverse decision by the Warden to the Central
Office Review Committee (“CORC”). Finally, the inmate can appeal
CORC’s decision to the New York City Board of Correction (“Board”).

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A prisoner is required to proceed through each step of the review
process even if he receives no response from prison officials at one step
in the process. See Reuben v. NYC Dep’t of Corr., 11 Civ. 378, 2011 WL
5022928 (S.D.N.Y. Oct. 18, 2011); George v. Morrison-Warden, 06 Civ.
3188, 2007 WL 1686321 (S.D.N.Y. June 11, 2007). However, “inmates
are not required to specifically plead or demonstrate exhaustion in their
complaints,” because the failure to exhaust is an affirmative defense.
Jones v. Bock, 549 U.S. 199, 216 (2007). Thus, the court should only
dismiss for failure to exhaust when that failure appears on the face of the
complaint. Id. at 215.
Here it is undisputed that the complaint properly alleges that
Rivera satisfied the first step by submitting a grievance. Rivera also
claims he spoke with the MDC rabbi and “made contact” with Warden
Colon. However, Rivera does not claim that he filed any appeal with
CORC or the Board, and thus Rivera’s failure to exhaust all available
administrative remedies appears on the face of the complaint.
Additionally, Rivera does not present grounds for the court to excuse his
failure to formally exhaust because he does not allege that correction
officers in any way interfered with his efforts to pursue his claim. See
O’Connor v. Featherston, 01 Civ. 3251, 2002 WL 818085 (S.D.N.Y. April
29, 2002).
C. Additional Grounds for Dismissal

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efendants also move to dismiss the complaint against Schriro on
the gr unds that Rivera does not properly allege a Monell claim. Given
that Ii' era's failure to exhaust all available administrative remedies
presen s adequate grounds for dismissal, the court need not reach this
additil nal argument.

Conclusion
or the reasons stated above, Defendants' motion to dismiss is
grantc~

. This order resolves the motion located at Doc. No. 31.

o ORDERED.
Date(:: New York, New York
September 16, 2013

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~Griesa
U.S. District Judge

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