Bolton et al v. Department of Corrections

Filing 22

OPINION AND ORDER re: (12 in 1:13-cv-06259-RJS) MOTION to Dismiss the Complaint filed by Luis Rivera, (10 in 1:13-cv-06624-RJS) MOTION to Dismiss the Complaint filed by New York City, (9 in 1:13-cv-07195-RJS) MOTION t o Dismiss the Complaint filed by City of New York, (9 in 1:13-cv-07659-RJS) MOTION to Dismiss the Complaint filed by The City of New York, (25 in 1:13-cv-06090-RJS) MOTION to Dismiss the Complaint filed by Blake, Lindo, Margarita, Rothwell, Hill, Luis Rivera, (11 in 1:13-cv-06340-RJS) MOTION to Dismiss the Complaint filed by City of New York, (11 in 1:13-cv-06843-RJS) MOTION to Dismiss the Complaint filed by The City of Ne w York, (20 in 1:13-cv-06348-RJS) MOTION to Dismiss the Complaint filed by Dora B. Schriro, Collins, Purvis, Luis Rivera, (13 in 1:13-cv-05749-RJS) MOTION to Dismiss the Complaint filed by Department of Corrections. IT IS HEREBY ORDERED THAT Defendants' consolidated motion to dismiss is DENIED without prejudice to renewal as a motion for summary judgment on the issue of administrative exhaustion. The Clerk of the Court is respectfully directed to termin ate the motions pending at 13-cv-5749, Doc. No. 13; 13-cv-6340, Doc. No. 11; 13-cv-6624, Doc. No. 10; 13-cv-6843, Doc. No. 11; 13-cv-7195, Doc. No. 9; 13-cv-7659, Doc. No. 9; 13-cv-6090, Doc. No. 25; 13-cv-6259, Doc. No. 12; and 13-cv-6348, Doc. No. 20. IT IS FURTHER ORDERED THAT Defendants shall file their contemplated motion for summary judgment no later than October 10, 2014. Plaintiffs shall respond, if at all, no later than October 24, 2014. Defendant shall reply, if at all, no later than October 31, 2014. The parties shall submit statements of material fact pursuant to Local Civil Rule 56.1 ("56.1 statements") in connection with Defendants' motion. The Court reminds Plaintiffs that failure to submit re sponsive 56.1 statements will be deemed an admission of the facts set forth in Defendants' 56.1 statement. Local Civil Rule 56.1(c). Defendants shall serve each of the Plaintiffs with a copy of the notice required by Local Civil Rule 56.2, which Plaintiffs should read carefully. (Signed by Judge Richard J. Sullivan on 9/8/2014) Copies Mailed By Chambers. (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDSSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED:

No. 13-cv-5749 (RJS)

SHADY BOLTON, et al.,
Plaintiffs,

No. 13-cv-6340 (RJS)

ENRIQUE ROSADO,
Plaintiff,

No. 13-cv-6624 (RJS)

ABUBAKR SANCHEZ,
Plaintiff,

No. 13-cv-6843 (RJS)

JOSE SOTO,
Plaintiff,

No. 13-cv-7195 (RJS)

WILLIAM TIRADO,
Plaintiff,

No. 13-cv-7659 (RJS)

EDUARDO SANTANA,
Plaintiff,
-vCITY OF NEW YORK,
Defendant.

No. 13-cv-6090 (RJS)

TASHON SPURGEON,
Plaintiff,
MARK GREEN,

No. 13-cv-6259 (RJS)
Plaintiff,

-vWARDEN LUIS RIVERA, et al.,
Defendants.

It

'

TERRON SESSION, et al.,
No. 13-cv-6348 (RJS)

Plaintiffs,
-v-

OPINION AND ORDER

DORA B. SCHRIRO, et al.,
Defendants.

RICHARD J. SULLIVAN, District Judge:
Plaintiffs in the above-captioned cases (collectively, the "AMKC Cases"), all of whom
are proceeding pro se and in forma pauperis, bring claims under 42 U.S.C. § 1983 ("section
1983") for injuries arising out of a series of prison lockdowns that allegedly took place at the
Anna M. Kross Center ("AMKC"), a prison facility on Rikers Island operated by the New York
City Department of Correction (the "DOC"). Defendants have filed a consolidated motion to
dismiss the cases pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the
reasons set forth below, the motion is denied without prejudice to renewal as a motion for
summary judgment on the issue of administrative exhaustion.

I. BACKGROUND
A. Facts
These cases, brought by inmates who were incarcerated at the AMKC prison facility from
July 2013 to August 2013, arise out of administrative lockdowns that allegedly took place at the
facility during that time period. 1 The cases fall into three groups.

1

The facts are drawn from the Complaints in each of the AMKC Cases, which are assumed to be
true for purposes of this motion. (13-cv-5749, Doc. No. 2 ("Bolton Compl."); 13-cv-6340, Doc.
No. 2 ("Rosado Compl."); 13-cv-6624, Doc. No. 2 ("Sanchez Compl."); 13-cv-6843, Doc. No. 2
("Soto Compl."); 13-cv-7195, Doc. No. 2 ("Tirado Compl."); 13-cv-7659, Doc. No. 2 ("Santana
Compl.," and, collectively with Bolton Compl., Rosado Comp!., Sanchez Comp!., Soto Comp!.,
2

The first group of cases (the "Bolton Cases") consists of the cases captioned l 3-cv-5749,
13-cv-6340, 13-cv-6624, 13-cv-6843, 13-cv-7195, and 13-cv-7659. These cases are brought by
Plaintiffs Shady Bolton, Derrick Francis, Jonathan Groenow, Enrique Rosado, Abubakr Sanchez,
Jose Soto, William Tirado, and Eduardo Santana (the "Bolton Plaintiffs") against the City of
New York (the "City"). 2

The Complaints in these cases allege that, following a slashing

incident, the AMKC instituted lockdown procedures from July 31, 2013 to August 4, 2013 and
that during this period, the Bolton Plaintiffs were: (1) deprived of showers; (2) not permitted to
call their attorneys or family members; (3) restricted in their commissary purchases; (4) denied
yard time; (5) not afforded adequate religious services or access to the law library; (6) confined
to their cells for prolonged periods in violation of DOC regulations; (7) deprived of adequate
medical care; (8) deprived of their footwear; and (9) subjected to unsanitary cell conditions.
(Bolton Cases Compls. at 2, 3; Bolton Compl. Attachment.)

Alleging that they suffered

emotional distress and insomnia and that some of them needed mental health treatment as a
result, the Bolton Plaintiffs seek monetary damages of $200,000 each and, in some cases,
injunctive relief. (Bolton Cases Compls. at 3, 5.)

and Tirado Compl., "Bolton Cases Compls."); 13-cv-6090, Doc. No. 2 ("Spurgeon Compl."); 13cv-6259, Doc. No. 2 ("Green Compl.," and, collectively with Spurgeon Compl., "Spurgeon
Cases Compls."); 13-cv-6348, Doc. No. 2 ("Session Compl.") (collectively, the "AMKC
Compls.").)
Some of the Bolton Cases also name the DOC or the AMKC as additional defendants. As the
Court noted in previous orders, the DOC and AMKC are not suable entities, and claims against
either entity must be construed as claims against the City. (13-cv-5749, Doc. No. 9; 13-cv-6340,
Doc. No. 5; 13-cv-6624, Doc. No. 6; 13-cv-6843, Doc. No. 6; 13-cv-7195, Doc. No. 5; 13-cv7659, Doc. No. 7.)

2

3

The second group of cases (the "Spurgeon Cases") consists of the cases captioned 13-cv6090 and 13-cv-6259. The Spurgeon Cases are brought by Plaintiffs Tashon Spurgeon and Mark
Green (the "Spurgeon Plaintiffs") against Defendants Warden Luis Rivera, Captain Johnson,
Deputy Hill, Deputy Margarita, Captain Blake, Correction Officer Ellis, Correction Officer
Lindo, and Correction Officer Rothwell.3 (Spurgeon Cases Compls. at 1.) In nearly identical
Complaints, the Spurgeon Plaintiffs allege that, on the orders of Captain Johnson and Deputies
Hill and Margarita, they were locked down at the AMKC for various periods between July 11,
2013 and August 4, 2013, and that during the lockdowns they were: (1) deprived of hot showers
and personal hygiene products; (2) not permitted to have visitors, call their attorneys or family
members, or have any sort of correspondence with any person; (3) restricted in their commissary
purchases; (4) not afforded adequate religious services or access to the law library; (5) confined
to their cells for prolonged periods in violation of DOC regulations; (6) deprived of adequate
medical care; (7) deprived of their footwear and clothes; (8) subjected to unsanitary cell
conditions; (9) deprived of food and hot, balanced meals; (10) denied recreation; and (11) denied
access to courts and administrative agencies. (Spurgeon Cases Compls. at 2, 3; id. Attachment.)
The Spurgeon Plaintiffs allege that they suffered both mental and physical health problems as a
result of the lockdowns and seek monetary damages of $500,000 each.

(Spurgeon Cases

Compls. at 3, 5.)
The final group consists of a single case, Session v. Schriro (the "Session Case"),
captioned 13-cv-6348.

The Session Case is brought by Plaintiffs Terron Session, Ramel

3

Some of these Defendants have not yet been served. The New York City Law Department
represents all of the Defendants who have been served. (See, e.g., 13-cv-6090, Doc. Nos. 9, 10.)
4

Williams, and Daquan Bowers (the "Session Plaintiffs") 4 against Defendants Dora B. Schriro,
Warden Luis Rivera, Deputy Warden Purvis, Deputy Warden Collins, and Correction Officer
John Doe. (Session Compl. at 1.) The Session Complaint alleges that the AMKC was locked
down between July 21, 2013 and July 28, 2013 and that Plaintiffs were: (1) not permitted to have
visitors and had family members subjected to aggressive and humiliating search procedures by
AMKC staff; and (2) not afforded adequate religious services, access to the law library, or access
to the mail. (Session Compl. at 2, 3; id. Attachment.) The Session Plaintiffs allege that they
suffered psychological damage as a result of the lockdowns and seek monetary damages of
$5,000,000 each and various forms of injunctive relief. (Session Comp I. at 3, 5.)
B. Procedural History
Plaintiffs filed these cases on various dates between August 2013 and October 2013.
(AMKC Compls. at 1.) On January 24, 2014, the New York City Law Department filed the
instant consolidated motion to dismiss on behalf of all Defendants who were served. (13-cv5749, Doc. No. 13; 13-cv-6340, Doc. No. 11; 13-cv-6624, Doc. No. 10; 13-cv-6843, Doc. No.
11; 13-cv-7195, Doc. No. 9; 13-cv-7659, Doc. No. 9; 13-cv-6090, Doc. No. 25; 13-cv-6259,
Doc. No. 12; 13-cv-6348, Doc. No. 20.) Plaintiffs' opposition briefs were originally due on
February 28, 2014. (13-cv-5749, Doc. No. 13; 13-cv-6340, Doc. No. 11; 13-cv-6624, Doc. No.
10; 13-cv-6843, Doc. No. 11; 13-cv-7195, Doc. No. 9; 13-cv-7659, Doc. No. 9; 13-cv-6090,
Doc. No. 25; 13-cv-6259, Doc. No. 12; 13-cv-6348, Doc. No. 20.) At the request of Plaintiff

By Order dated December 20, 2013, the Honorable Loretta A. Preska, to whom t~i~ case w~s
initially assigned, dismissed Plaintiffs Jesse Blount, Patrick Rapcavage, Shadae Williams, Gail
Blount, Caitlyn Schoonover, and Michael Rapcavage from this action for failing to submit
necessary documents. (Doc. No. 13.)

4

5

Daquan Bowers, the Court extended Plaintiffs' deadline to respond to March 28, 2014. (13-cv5749, Doc. No. 17; 13-cv-6624, Doc. No. 13; 13-cv-6843, Doc. No. 14; 13-cv-7195, Doc. No.
12; 13-cv-7659, Doc. No. 12; 13-cv-6090, Doc. No. 28; 13-cv-6259, Doc. No. 15; 13-cv-6348,
Doc. No. 23.) To date, no Plaintiff in any of the AMKC Cases, including Bowers, has filed an
opposition brief. 5
II.

LEGAL STANDARD

To survive a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a complaint must "provide the grounds upon which [the] claim rests."

ATS!

Commc 'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). The plaintiff must allege
"enough facts to state a claim to relief that is plausible on its face." Bell At!. Corp. v. Twombly,
550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In reviewing a Rule 12(b)(6)
motion to dismiss, a court must accept as true all factual allegations in the complaint and draw all
reasonable inferences in favor of the plaintiff. ATS! Commc 'ns, 493 F.3d at 98. However, that
tenet "is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. Thus, a pleading that only
offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action
will not do." Twombly, 550 U.S. at 555. If the plaintiff "ha[s] not nudged [his] claims across the

5

Each of the Court's Orders has been mailed to the addresses listed by Plaintiffs on ECF. In
cases where the Court has specifically been made aware by the Law Department or the Pro Se
Office that an address is outdated, the Court has also mailed copies of the orders to the address
listed on the DOC's Inmate Lookup system. Some of the Court's mailings have recently been
returned as undeliverable. It is Plaintiffs' responsibility to alert the Pro Se Office of address
changes. See Pro Se Litigation Manual at 6.
6

line from conceivable to plausible, [his] complaint must be dismissed." Id. at 570. Although the
Court construes the Complaint liberally because Plaintiffs are pro se, the complaints must still
contain factual allegations that raise a "right to relief above the speculative level" in order to
survive a motion to dismiss. Dawkins v. Gonyea, 646 F. Supp. 2d 594, 603 (S.D.N.Y. 2009)
(quoting Twombly, 550 U.S. at 555) (internal quotation marks omitted).
On a motion to dismiss, the Court may consider, in addition to the complaint itself, "any
written instrument attached to it as an exhibit, materials incorporated in it by reference, and
documents that, although not incorporated by reference, are integral to the complaint." Sira v.
Morton, 380 F.3d 57, 67 (2d Cir. 2004) (citations and quotation marks omitted); see also Taylor
v. Vt. Dep 't of Educ., 313 F.3d 768, 776 (2d Cir. 2002); Chambers v. Time Warner, Inc., 282

F.3d 147, 153 (2d Cir. 2002).
Ill. DISCUSSION

Defendants raise a number of grounds why the AMKC Cases must be dismissed. As
discussed below, the Court finds that while it appears from the face of the Complaints that none
of the Plaintiffs have complied with the administrative exhaustion requirement of the Prison
Litigation Reform Act (the "PLRA"), Plaintiffs should be given an opportunity to set forth facts
that could excuse their failure to exhaust. Accordingly, the Court denies Defendants' motion to
dismiss without prejudice to renewal as a motion for summary judgment on the issue of
administrative exhaustion. Because Plaintiffs' failure to exhaust administrative remedies would
entirely dispose of these claims, the Court does not reach the other grounds for dismissal urged
by Defendants. 6

6

As discussed below, in the event that the Court denies summary judgment on the issue of
7

A. The PLRA Exhaustion Requirement
The PLRA, which Congress passed to reform and streamline the consideration of
prisoner lawsuits by federal courts, provides:
No 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 jail, prison, or
other correctional facility until such administrative remedies as are available are
exhausted.
42 U.S.C. § 1997e(a). Because the failure to exhaust administrative remedies is an affirmative
defense, prisoner plaintiffs are "not required to specially plead or demonstrate exhaustion in their
complaints." Jones v. Bock, 549 U.S. 199, 216 (2007). However, a court may still dismiss a
prison condition suit on a Rule 12(b)(6) motion if the allegations of the complaint show that the
plaintiff has failed to comply with the administrative exhaustion requirement. Id at 215-16 ("A
complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show
the plaintiff is not entitled to relief. ... [That administrative exhaustion need not be pleaded] is
not to say that failure to exhaust cannot be a basis for dismissal for failure to state a claim."). In
other words, although a complaint cannot be dismissed for failing to plead that administrative
remedies were exhausted, it can be dismissed if it pleads facts demonstrating that administrative
remedies were not exhausted. See Williams v. Dep't of Corr., No. 1 l-cv-1515 (SAS), 2011 WL
3962596, at *5 (S.D.N.Y. Sept. 7, 2011) ("Dismissal for failure to exhaust administrative
remedies is appropriate where, on the face of the Complaint, it is clear that plaintiff did not
exhaust such remedies.").

administrative exhaustion, Defendants will be permitted to renew their motion to dismiss on
these other grounds.
8

B. The Administrative Procedure at the AMKC
The DOC administers an administrative grievance procedure, the Inmate Grievance and
Request Program ("IGRP"), for inmates at its facilities, including the AMKC. The IGRP, which
is set forth in DOC Directive 3376, applies to grievances about the following prison conditions:
(1) clothing, (2) commissary, (3) correspondence/mail, (4) food, (5) housing, (6) law library, (7)
mental and medical health complaints involving DOC personnel, 7 (8) personal hygiene, (9)
phone use, (10) recreation, and (11) religious observance and expression. IGRP App. A. Under
the IGRP, a prisoner who wishes to file a grievance must file a form with IGRP staff within ten
business days of the condition giving rise to the grievance. Id. §§ II.F, IV.B. l. IGRP staff are
required to provide an "informal resolution" within five business days of receiving the form. Id.
§ II.F. The dispositions of IGRP staff are appealable through several layers of review, up to the
DOC's Central Office Review Committee ("CORC"). Id. §ILG (providing for appeal of IGRP
staff's disposition to Inmate Grievance Resolution Committee, then to facility's Commanding
Officer, then to the CORC). The administrative process is complete only when the CORC has
issued its disposition. Id. The decisionmakers at each level of review must issue their decisions
within certain time limits, id. §§ IV.G.l, H.l, I.2, J.5.a-b, and an inmate may appeal if he "does
not receive a timely disposition at any stage of the IGRP process," id § IV.D.10.

7

The IGRP applies to "grievances or requests concerning correctional staff's alleged interference
with medical treatment or access to medical care," but not to "grievances or requests concerning
the actions of medical personnel," which are subject to different administrative procedures.
IGRP § IV.B.2.d. Some of the AMKC Cases raise claims based on DOC staff members' alleged
interference with proper medical or mental health treatment; none asserts claims against medical
staff for improper care. (See AMKC Compls. at 1, 3).
9

C. Plaintiffs' Failure to Exhaust the Administrative Procedure
Here, it is clear from the face of the Complaints that none of the Plaintiffs exhausted the
IGRP procedure. Plaintiff Sanchez explicitly pleads that he never filed a grievance "[b ]ecause
the people that did file grievances never got a respon[se]."

(Sanchez Compl. at 4.)

The

remaining Plaintiffs in the Bolton and Spurgeon Cases plead that although they initiated the
administrative process by filing grievances, they did not file any appeals because their grievances
received no response. 8 (Bolton Compl. at 4; Rosado Compl. at 4; Soto Compl. at 4; Tirado
Compl. at 4; Santana Compl. at 4; Spurgeon Cases Compls. at 4.) Finally, the Session Plaintiffs
plead that they filed grievances, which are "still pending" and "under investigation." (Session
Compl. at 4.) Thus, no Plaintiff exhausted the IGRP procedure: (1) Sanchez never even began
the process, (2) the remaining Bolton and Spurgeon Plaintiffs began the process, but made no
effort to continue it when they received no response to the initial grievances, and (3) the Session
Plaintiffs are still actively pursuing the process.
D. Exemption from Exhaustion Under Hemphill v. New York
The conclusion that Plaintiffs failed to exhaust the IGRP procedure does not end the
inquiry. Under certain circumstances, a plaintiffs failure to exhaust administrative remedies
may be excused. This inquiry is generally guided by the three-part framework set forth by the
Second Circuit in Hemphill v. New York, which considers: (1) "whether administrative remedies
were in fact available to the prisoner," (2) "whether the defendants may have forfeited the

8

These Plaintiffs allege that they "[ n ]ever got called down for [an] interview" or that "nothing
resulted" from their grievances and describe their efforts to appeal as "N/A." (Bolton Compl. at
4; Rosado Compl. at 4; Soto Compl. at 4; Tirado Compl. at 4; Santana Compl. at 4; Spurgeon
Cases Compls. at 4.)
10

affirmative defense of non-exhaustion by failing to raise or preserve it or whether the defendants'
own actions inhibiting the inmate's exhaustion of remedies may estop one or more of the
defendants from raising the plaintiffs failure to exhaust as a defense," and (3) "whether special
circumstances have been plausibly alleged that justify the prisoner's failure to comply with
administrative procedural requirements." 380 F.3d 680, 686 (2d Cir. 2004). 9
Here, the first Hemphill factor does not excuse Plaintiffs' failure to exhaust: on the face
of the Complaints, it is clear that administrative relief was available to Plaintiffs through the
IGRP process. "To be available under the PLRA, a remedy must afford the possibility of some
relief for the action complained of." Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir. 2004)
(internal quotation marks omitted). Here, each of the conditions complained of by Plaintiffs falls
within one of the categories to which the IGRP applies. See IGRP App. A. Based on the
Complaints, the IGRP process was in fact available to Plaintiffs, and all of the Plaintiffs but one,
Sanchez, started the process by filing grievances. (AMKC Compls. at 4.)
The Court notes that the alleged unresponsiveness of IGRP staff to Plaintiffs' grievances
and Plaintiffs' apparent belief that this made it unnecessary to file appeals did not make

9

Following the Supreme Court's decision in Woodford v. Ngo, 548 U.S. 81, 90-91 (2006),
holding that the PLRA requires "proper exhaustion" of administrative remedies in "compliance
with an agency's deadlines and other critical procedural rules," the Second Circuit has noted,
without holding, that the second and third prongs of the Hemphill analysis - estoppel and special
circumstances - may no longer be applicable. See Amador v. Andrews, 655 F.3d 89, 102 (2d Cir.
2011) ("We have questioned whether, in light of Woodford, the doctrines of estoppel and special
circumstances survived." (citing cases)). Nevertheless, the Second Circuit conducted a Hemphill
analysis in Amador itself, 655 F.3d at 102-04, and district courts in this Circuit have continued
to apply the Hemphill framework following Woodford and Amador, see, e.g., Powell v. Corr.
Med. Care, Inc., No. 13-cv-6842 (WHP), 2014 WL 4229980, at *2 n.3 (S.D.N.Y. Aug. 15, 2014)
(collecting cases); Stevens v. City of New York, No. 12-cv-1918 (JPO) (JLC), 2012 WL 4948051,
at *6 (S.D.N.Y. Oct. 11, 2012).
11

administrative exhaustion unavailable to Plaintiffs. As discussed above, the IGRP sets deadlines
for each stage of the process - including a five-business-day turnaround time for informal
resolutions by IGRP staff - and explicitly permits inmates to file appeals if they do not "receive
a timely disposition at any stage of the IGRP process." IGRP § IV.D.10 (emphasis added).
Courts in this Circuit have consistently held that the failure to take an available administrative
appeal, even when the initial grievance receives no response, constitutes a failure to exhaust
available administrative remedies. See, e.g., Johnson v. New York City Dep 't of Correction, No.
13-cv-6799 (CM), 2014 WL 2800753, at *6 (S.D.N.Y. June 16, 2014) ("Assuming that Plaintiff
filed a timely grievance ... and received no response within five business days ... , Plaintiff ...
could have taken the next step and requested a hearing."); Leacock v. New York City Health

Hosp. Corp., No. 03-cv-5440 (RMB) (GWG), 2005 WL 483363, at *7 (S.D.N.Y. Mar. 1, 2005)
("[T]hat [plaintiff] allegedly did not receive a response to her grievance does not excuse her from
failing to exhaust the appellate remedies available to her."); Burns v. Moore, No. 99-cv-0966
(LMM) (THK), 2002 WL 91607, at *8 (S.D.N.Y. Jan. 24, 2002) ("Thus, even if Plaintiff
received no response to his initial grievance, Plaintiff could have sought the next level of review,
in this case, to the prison superintendent."). Accordingly, the Court finds that administrative
remedies were available to Plaintiffs. 10

10

A similar analysis applies to Plaintiff Sanchez, who did not file a grievance because other
inmates allegedly did not receive timely responses to theirs. (Sanchez Compl. at 4.) Even if
Sanchez reasonably believed that a grievance would have gone unanswered, he should have filed
one anyway and then availed himself of the IGRP appeals process. IGRP § IV.D.10; see, e.g.,
Harrison v. Goard, No. 07-cv-1806 (HB), 2009 WL 1605770, at *4 (S.D.N.Y. June 9, 2009)
("Prisoners are required to exhaust their administrative remedies even if they believe that
administrative remedies would be ineffective or futile." (citations and internal quotation marks
omitted).)
12

Furthermore, none of the Complaints allege any facts that would excuse non-exhaustion
under the second and third Hemphill factors - estoppel and special circumstances. There are no
allegations that AMKC staff retaliated against Plaintiffs or prevented them from pursuing
administrative remedies, as would be necessary to support an estoppel argument. 11 See Ruggiero
v. Cnty. of Orange, 467 F.3d 170, 178 (2d Cir. 2006). There are also no allegations of any

special circumstances that would explain and justify Plaintiffs' failure to complete the
administrative process.
That said, the Court is mindful that, under Bock, Plaintiffs "are not required to specially
plead or demonstrate exhaustion in their complaints." 549 U.S. at 216. Thus, the Court cannot
infer, from the mere absence of allegations that would support an estoppel or special
circumstances argument, that no such arguments are available to Plaintiffs. Where the merits of
an administrative exhaustion defense cannot be determined from the face of a complaint, courts
in this Circuit have frequently converted defendants' motions to dismiss to motions for summary
judgment on the limited issue of administrative exhaustion. See, e.g., McCoy v. Goard, 255 F.
Supp. 2d 233, 251 (S.D.N.Y. 2003); Stevens, 2012 WL 4948051, at *3; Lovick v. Schriro, No.
12-cv-7419 (ALC) (RLE), 2014 WL 3778184, at *5 (S.D.N.Y. July 25, 2014). The Court takes
that course here.
To be sure, some courts in this District and elsewhere have granted motions to dismiss in
cases where, on the face of the complaint, it is clear that the prisoner plaintiff did not exhaust

11

A plaintiff may also assert an estoppel argument if defendants fail to timely assert an
administrative exhaustion defense. Hemphill, 380 F.3d at 686. That branch of the estoppel
inquiry is clearly not implicated here, since Defendants have raised their administrative
exhaustion defense in this pre-answer motion to dismiss.
13

administrative remedies and where the complaint does not allege any facts supporting application
of the Hemphill factors. See, e.g., Jordan v. Fed Bureau of Prisons, No. 09-cv-8561 (ALC),
2013 WL 1143617, at *6 (S.D.N.Y. Mar. 19, 2013); Martin v. City of New York, No. l l-cv-600
(PKC) (RLE), 2012 WL 1392648, at *6-7 (S.D.N.Y. Apr. 20, 2012). However, this approach
appears to be in tension with the Supreme Court's holding in Bock that prisoner plaintiffs are
"not required to specially plead or demonstrate exhaustion in their complaints." 549 U.S. at 216.
In the Court's view, it is hard to reconcile the holding of Bock - that a plaintiff need not allege
any facts about exhaustion at all - with the position that if a plaintiff alleges that he did not
exhaust administrative remedies, he must then plead additional facts justifying his failure to do
so under Hemphill. Cf Bailey v. Fortier, No. 09-cv-0742 (GLS) (DEP), 2012 WL 6935254, at
*5-6 (N.D.N.Y. Oct. 4, 2012) (noting this tension). Furthermore, it is unrealistic to expect a pro
se plaintiff to know that the inclusion of facts reflecting his failure to exhaust administrative

remedies triggers an affirmative duty to plead additional facts concerning the relevant Hemphill
factors that would excuse his failure to exhaust. Absent a clear directive from the Supreme
Court or the Second Circuit, the Court declines to impose such a pleading requirement.
Accordingly, the Court denies Defendants' motion to dismiss without prejudice to renewal as a
Rule 56 motion for summary judgment on the issue of administrative exhaustion. 12

12

Because the administrative exhaustion issue is likely dispositive of all the above-captioned
cases, the Court does not address the other grounds for dismissal discussed in Defendants'
motion to dismiss. Defendants may renew their motion to dismiss on those grounds, if
necessary, once the Court has ruled on the administrative exhaustion issue.
14

IV. CONCLUSION

IT IS HEREBY ORDERED THAT Defendants' consolidated motion to dismiss is
DENIED without prejudice to renewal as a motion for summary judgment on the issue of
administrative exhaustion.

The Clerk of the Court is respectfully directed to terminate the

motions pending at 13-cv-5749, Doc. No. 13; 13-cv-6340, Doc. No. 11; 13-cv-6624, Doc. No.
10; 13-cv-6843, Doc. No. 11; 13-cv-7195, Doc. No. 9; 13-cv-7659, Doc. No. 9; 13-cv-6090,
Doc. No. 25; 13-cv-6259, Doc. No. 12; and 13-cv-6348, Doc. No. 20.
IT IS FURTHER ORDERED THAT Defendants shall file their contemplated motion for
summary judgment no later than October 10, 2014. Plaintiffs shall respond, if at all, no later
than October 24, 2014. Defendant shall reply, if at all, no later than October 31, 2014. The
parties shall submit statements of material fact pursuant to Local Civil Rule 56.1 ("56.1
statements") in connection with Defendants' motion. 13
The Court reminds Plaintiffs that failure to submit responsive 56.1 statements will be
deemed an admission of the facts set forth in Defendants' 56.1 statement. Local Civil Rule
56.l(c). Defendants shall serve each of the Plaintiffs with a copy of the notice required by Local
Civil Rule 56.2, which Plaintiffs should read carefully.
SO ORDERED.
Dated:

September 8, 2014
New York, New York

13

Any requests for additional discovery relating to administrative exhaustion should be made in
the parties' summary judgment submissions.
15

Copies of this Opinion and Order were sent to:
All Pro Se Plaintiffs in the AMKC Cases at the addresses listed on ECF.

16