Hardimon v. Westechester County et al

Filing 21

MEMORANDUM AND ORDER granting 17 Motion to Dismiss. For the reasons stated above, defendants' motion to dismiss (Dkt. 17) is GRANTED as to all claims brought against defendant Westchester County, the state law assault claim against all defenda nts, and the claim of denial of access to the courts against all defendants and DENIED regarding all other claims. Defendants' counsel is ordered to mail to the plaintiff copies of all unpublished authorities cited herein. The Court certifies pu rsuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED.(Signed by Judge P. Kevin Castel on 11/06/2013) (ama)

USDSSDNY
DOCUMENT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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KEVIN HARDIMON,

ELECTRONICALLY FILED
DOC#: ____________

=

DATE FILED:

//-£-13

Plaintiff,
13 Civ. 1249 (PKC) (MHD)
-againstMEMORANDUM
AND ORDER
WESTCHESTER COUNTY,
CORRECTIONAL OFFICER WHITE 1329,
AND CORRECTIONAL SERGEANT
HODGE, INDIVIDUALLY AND IN THEIR
OFFICIAL CAPACITIES
Defendants.

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CASTEL, District Judge:
Plaintiff Kevin Hardimon brings this action against Corrections Officer White and
Con·ections Sergeant Hodge, individually and in their official capacities, and Westchester
County, alleging that while incarcerated, the individual defendants subjected him to clUel and
unusual punishment and violated his due process rights, and that Westchester County failed to
prevent these violations. Hardimon's claims are asserted under section 1983,42 U.S.C. § 1983,
and he also asserts a state law assault claim against COlTections Officer White. Defendants have
moved to dismiss the complaint pursuant to Rule 12(b)(6), Fed. R. Civ. P. (Dkt. 17.) Hardimon,
who is proceeding pro se, has filed no opposition papers and has not communicated with the
Court since the filing of the motion over tlu·ee months ago. l For the reasons stated below, the
defendants' motion is granted in patt and denied in part.

I On April 4, 2013, plaintiff notified the Court of his change of address. (Dkt. 9.) On April 18, 2013, plaintiffwrote
to Magistrate Judge Michael H. Dolinger, seeking discovery from Westchester County Jail. (Dkt. 10.)

BACKGROUND
According to the complaint, upon Hardimon's return from a court appear.ance on
January 17,2013, COlTections Officer White approached him and directed him to return to cell
10, where he had been housed. (Dkt. 2 at 5. 2) Conections Officer White thereafter directed
Hardimon into Cell 12. (Id.) Upon direction fi·om an "unknown conectional officer,"
Conections Officer White directed Hardimon to "13-Celll-East." (IQJ 13-Celll-East was
unsanitary and unclean. Id. Hardimon attempted to flush the toilet, which then overflowed.
(Id.) He requested that Conections Officer White call a supelvisor. (Id.) Corrections Officer
White refused to call a supervisor, and instead stated that he would "call an Inmate to come with
the snake sorry that's what happens when you hit correctional staff." (Id.) The complaint
alleges that Corrections Officer White's statement and Hardimon's placement in 13-Celll-East
were in retaliation for a prior incident between Hardimon and another corrections officer. (Id. at
5,7.) Hardimon repeatedly requested that Corrections Officer White call a supelvisor. (Id. at 7.)
Hardimon then stood next to Corrections Officer White with his arms crossed, again requesting
that he call a supelvisor. (Id.) In response, COITections Officer White stated in profane language
that he would hmt Hardimon. (Id.) Hardimon repeated his request that Corrections Officer
White call a supelvisor. (Id.) Corrections Officer White then "without warning smacked
plaintiff in his face then followed with two punches to Plaintiffs face then ... t!uu plaintiff to
the concrete ground then ... stompped on plaintiff back 2 times [sic]." (Id.) Corrections Officer
White dragged Hardimon for approximately 18 feet into "3 Cell" while screaming expletives at
him. (IQJ Corrections Officer White allegedly punched Hardimon in the head t!u·ee additional
times, and picked Hardimon up and dropped him to the ground. (Id.) Hardimon was then taken

2 The Complaint is filed in mUltiple parts. For ease of reference, the Court will refer to the ECF page numbers to
identify pages within the complaint.

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to solitary confinement by the Emergency Response Team. (Id.) Hardimon alleges that he
suffered bruising and severe back pain, sharp neck pain, lumps on his head, kuee pain, insomnia,
post-traumatic stress disorder, and anxiety. (Dkt. 2-1 at 5.)
According to the complaint, after this incident, COlTections Officer White created
a false disciplinary repOlt, which stated that Hardimon had punched Corrections Officer White.
(Dkt. 2 at 7.) Hardimon attempted to submit a grievance to Sergeant Hodge on January 22,
2013, the last day he was able to submit a grievance under Westchester County Jail rules. (rd.)
Sergeant Hodge refused to accept Hardimon's grievance fOlm, stating that Hardimon could not
"grieve disciplinary." (Id.) Hardimon was found guilty at a disciplinary hearing, and sentenced
to "45 days 30 solitary confinement 15 KEEPLOCK status." (Id.) Hardimon appealed that
decision, and his appeal was denied.

(ill

RULE 12(b)(6) STANDARD
To survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain
sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 662,678 (2009) (quoting Bell Atl. Com v. Twombly, 550 U.S. 544,
570 (2007». "'[L)abels and conclusions' or 'a fOlmulaic recitation of the elements ofa cause of
action will not do.'" rd. (quoting Twombly, 550 U.S. at 555). A plaintiff must plead "factual
content that allows the

COUIt

to draw the reasonable inference that the defendant is liable for the

misconduct alleged." Id. However, "'detailed factual allegations'" are not necessary. Id.
(quoting Twombly, 550 U.S. at 555-56).
In considering a Rule 12(b)(6) motion, all non-conclusory factual allegations are

accepted as true, see id. at 678-79, and all reasonable inferences are drawn in favor of the
plaintiff. See In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (per curiam).

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Moreover, plaintiffs pro se pleadings are "'to be liberally constmed ... [and], however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers.'" Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,
106 (1976)).
"[T]he complaint is deemed to include any written instmment attached to it as an
exhibit or any statements or documents incorporated in it by reference." Chambers v. Time
Warner, Inc., 282 F.3d 147,152 (2d Cir. 2002) (quoting Int'I Audiotext Network, Inc. v. Am.
Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (per curiam)). Finally, an unopposed Rule
12(b)(6) motion is still subject to review on its merits. McCall v. Pataki, 232 F.3d 321, 322 (2d
Cir. 2000).
DISCUSSION
1.

Monell Claim
Local governing bodies, such as Westchester County, may be sued directly under

section 1983 only where "a violation of rights resulted from the 'government's policy or custom,
whether made by its lawmakers or by those whose edits or acts may fairly be said to represented
official policy.'" Nagle v. Manon, 663 F.3d 100, 116 (2d Cir. 2011) (quoting Monell v. Dep't of
Social Servs., 436 U.S. 658, 694 (1978)). To demonstrate Monell liability, a plaintiff must show
a violation of constitutional rights and "(1) 'the existence of a municipal policy or custom ...
that caused his injuries beyond merely employing the misbehaving officer[s]'; and (2) 'a causal
connection-an 'affirmative link'-between the policy and the deprivation of his constitutional
rights.'" Harper v. City of New York, 424 F. App'x 36, 38 (2d Cir. 2011) (summ. order)
(quoting Vippolis v. Vill. Of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985)) (internal quotation
marks omitted). "A plaintiff may plead a municipal policy or custom by alleging: (1) a fOl1nal

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policy, promulgated or adopted by the entity; or, (2) that an official with policymaking authority
took action or made a specific decision which caused the alleged violation of constitutional
rights; or (3) the existence of an unlawful practice by subordinate officials that was so permanent
or well settled so as to constitute a 'custom or usage,' and that the practice was so widespread as
to imply the constlUctive acquiescence of policymaking officials." Shepherd v. Powers, 11 Civ.
6860 (LTS), 2012 WL 4477241, at *9 (S.D.N.Y. Sept. 27, 2012) (intemal quotation marks
omitted).
Hardimon alleges that Westchester County failed to properly supervise or
discipline its employees and failed to protect him from Officer White. In an effort to
demonstrate a municipal policy or custom which caused his injuries, he annexes to his complaint
a December 6, 2012 memorandum fi'om Captain Wendell W. Smiley (Dkt. 2-3 at 3), responding
to another inmate's allegations regarding Corrections Officer White. The response from Captain
Smiley to inmate Santiago Gomez indicates that another inmate had previously filed a grievance
against Corrections Officer White. An allegation of a single prior grievance against an officer
does not plausibly allege a "widespread" practice that amounts to a municipal policy or custom.
Hardimon also attaches a copy of a November 19, 2009 letter from then-Assistant
U.S. Attomey General Thomas E. Perez to Westchester County Executive Andrew J. Spano
(hereinafter "Findings Letter''), which reports the results of a joint investigation of the conditions
at the Westchester County Jail by the Civil Rights Division of the Justice Department and the
United States Attomey's Office pursuant to the Civil Rights of Institutionalized Persons Act, 42
U.S.C. § 1997. (Dkt. 2-4 at 3 - Dkt. 2-10.) The Findings Letter indicates that the Emergency
Response Team ("ERT") used excessive force against inmates. (Dkt. 2-5 at 1-7.) The ERT is
defined in the Findings Letter as "a team of cOlTection officers and supervisors who respond to

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incidents such as inmate-on-inmate and inmate-on-staff assaults. Each ERT comprises several
cOlTectional officers protected in full riot gear and helmets, and falls under the command of the
Emergency Services Unit." (Dkt. 2-5 at 7 n.6.) Hardimon does not allege that any members of
an ERT utilized excessive force against him or that COlTections Officer White was serving as an
ERT member at the time ofthe incident. Therefore, even when liberally construed, the
complaint does not allege that Westchester County has a policy or custom of individual
cOlTections officers utilizing excessive force against inmates which was causally connected to
Hardimon's injuries.
Hardimon's conclusory statement that Westchester County "is tuming the blind
eye while aware of brutality" (Dkt. 2-1 C) is insufficient to allege a municipal policy or custom
that caused his injuries. Similarly, his statements that there are "several claims pending against
[Westchester County] for similar behaviors in U.S.D.C. S.D.N.Y." and that "this recently
occur[r]ed to ronald akridge and count less others [sic]" are conclusory and do not plausibly
allege a municipal policy or custom which caused his injuries. (Dkt. 2-1 C.) Additionally,
Hardimon has not set forth any allegations that would SUppOlt a claim of municipal liability for
violation of his due process rights. Accordingly, the section 1983 claims against Westchester
County are dismissed.
II.

Exhaustion of Administrative Remedies
Under the Prison Litigation RefOlm Act ("PLRA"), "[n]o action shall be brought

with respect to prison conditions under section 1983 of this title, or any other Federal law, by a
prisoner confined in any j ail, prison, or other cOlTectional facility until such administrative
remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The PLRA's exhaustion
requirement "applies to all inmate suits about prison life, whether they involve general

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circumstances or particular episodes, and whether they allege excessive force or some other
wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). It is non-discretionary and absolute. See
Jones v. Bock, 549 U.S. 199,211 (2007) ("There is no question that exhaustion is mandatory
under the PLRA and that unexhausted claims cannot be brought in court.") The exhaustion must
be "[p ]roper," meaning that it must "compl[y] with an agency's deadlines and other critical
proceduralmles because no adjudicative system can function effectively without imposing some
orderly structure on the course of its proceedings." Woodford v. Ngo, 548 U.S. 81,90-91
(2006).
In Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004), the Second Circuit
set fOl1h a three-part inquiry for the district COUlt to conduct in addressing the affitmative defense
of failure to exhaust. Failure to exhaust may be excused or justified when "(I) administrative
remedies are not available to the prisoner; (2) defendants have either waived the defense of
failure to exhaust or acted in such a way as to estop them from raising the defense; or (3) special
circumstances, such as a reasonable misunderstanding of the grievance procedures, justify the
prisoner's failure to comply with the exhaustion requirement." Ruggiero v. Cnty. of Orange, 467
F.3d 170, 175 (2d Cir. 2006) (citing Hemphill v. New York, 380 F.3d at 686).
"[F]ailure to exhaust is an affirmative defense under the PLRA, and ... inmates
are not required to specially plead or demonstrate exhaustion in their complaints." Jones v.
Bock, 549 U.S. 199,216 (2007). "[A] Rule 12(b)(6) motion is the proper vehicle to assert an
exhaustion defense only where the plaintiff s failure to exhaust is apparent from the face of the
complaint .... " Han'is v. Westchester Cnty. Dep't of COlT., 06 Civ. 2011 (RJS), 2008 WL
953616, at *3 (S.D.N.Y. Apr. 3,2008) (internal quotation marks omitted).

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Here, Hardimon admitted in the complaint that he did not file a grievance, but he
also alleged that Sergeant Hodge prevented him ii-om filing a grievance by not accepting his
grievance while Hardimon was in solitary confinement. Although Hardimon has not alleged that
he exhausted his administrative remedies, the complaint alleges facts which may amount to a
justification or excuse for failure to exhaust. Defendants have not satisfied their burden to
demonstrate non-exhaustion, as they have neither provided infonnation regarding their grievance
procedures nor demonstrated that there is no excuse or justification for the plaintiffs failure to
exhaust administrative procedures. Defendants offer mere asseliions in their memorandum in
support oftheir motion to dismiss that Hardimon failed to exhaust his administrative remedies
because he did not file a grievance regarding the alleged excessive force, or a subsequent
grievance when Sergeant Hodge allegedly refused to accept his initial grievance.
"Plaintiff is not required to plead exhaustion to survive a motion to dismiss."
Harris, 2008 WL 953616, at *4 (citing Jones, 549 U.S. at 216). "Because the COUli cannot
undertake the Hemphill inquiry until the factual record is developed, dismissal ... at this early
stage is premature. The circumstances relative to exhaustion may look quite different on a
motion for summary jUdgment and nothing herein is intended to prejudice defendants' right to
seek dismissal after close of discovery." Brown v. Austin, 05 Civ. 9443 (PKC), 2007 WL
2907313, at *3 (S.D.N.Y. Oct. 3,2007) (citing Ziemba v. Wezner, 366 F.3d 161, 164 (2d Cir.
2004).
III.

State Law Assault Claim
"[l]n a federal comt, state notice-of-claim statutes apply to state-law claims."

Hardy v. New York City Health & Hasps., 164 F.3d 789, 793 (2d Cir. 1999). Hardimon did not
file and serve a notice of claim on the defendants within 90 days of the events giving rise to the

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claim, as required by New York General Municipal Law §§ 50-e and 50-i. New York's 90-day
notice-of-claim requirement applies to state tort claims brought as pendent claims in a federal
action. Fincher v. Cnty. of Westchester, 979 F. Supp. 989, 1002 (S.D.N.Y. 1997). New York
General Municipal Law § 50-e requires an individual to file a notice of claim before filing an
action for damages against a municipality or its employees and serve that notice of claim on the
municipality or its employees within 90 days of the events giving rise to the claim. Therefore,
Hardimon's state law assault claim is dismissed.

N.

Denial of Access to Courts as Result of Refusal to Process Grievance
Hardimon alleges that he was denied access to the courts by Sergeant Hodge's

failure to accept his grievance. Prisoners have a right to meaningful access to the courts. See
Bounds v. Smith, 430 U.S. 817, 828 (1977). This right is a substantive right derived from the
First and Fourteenth Amendment. Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003). "[P]rison
officials cannot unreasonably obstruct [this right] and ... states have affirmative obligations to
assure [that this right is not violated)." Washington v. James, 782 F.2d 1134, 1138 (2d Cir.
1986). To satisfy this right, state prisons must provide inmates "a reasonably adequate
opportunity to present claimed violations of fundamental constitutional rights to the comts."
Bounds, 430 U.S. at 825. "However, inmate grievance programs created by state law are not
required by the Constitution and consequently allegations that prison officials violated those
procedures [do] not give rise to a cognizable § 1983 claim." Harris, 2008 WL 953616, at *5
(intemal quotation marks omitted). See also Cancel v. Goord, 00 Civ. 2042 (LMM), 2001 WL
303713, at *3 (S.D.N.Y. Mar. 29, 2001). "Rather, in the event that prison officials ignore a
grievance that raises constitutional claims, the proper avenue to seek relief is the course taken by
plaintiffhere: directly petitioning the governnlent for redress of his claims." Harris, 2008 WL

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953616, at *5. Because Hardimon's allegations regarding Sergeant Hodge's failure to accept his
grievance do not SUppOlt a claim under section 1983, the claim is dismissed.
CONCLUSION
For the reasons stated above, defendants' motion to dismiss (Dkt. 17) is
GRANTED as to all claims brought against defendant Westchester County, the state law assault
claim against all defendants, and the claim of denial of access to the courts against all defendants
and DENIED regarding all other claims. Defendants' counsel is ordered to mail to the plaintiff
copies of all unpublished authorities cited herein.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
order would not be taken in good faith and therefore in forma pauperis status is denied for the
purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.

United States District Judge

Dated: New York, New York
November 6,2013

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