Galberth v. Washington et al

Filing 112

OPINION AND ORDER re: 82 MOTION to Dismiss, filed by Washington, City of New York. For the foregoing reasons, Plaintiff's claims against Ms. Hurnst, C.O. Soto, Ms. Green, the Doe Defendants, and the City of New York are dismis sed. However, Plaintiff still has a viable claim against Captain Washington. The Clerk of Court is ordered to terminate docket entry 82. The parties are ordered to appear for a telephone conference with the Court on Tuesday, May 3, 2016, at 10:00 a.m . Counsel for Defendant Washington shall arrange for both parties to call the Court at [phone] pursuant to the scheduling order separately issued on this date. (As further set forth in this Order.) (Telephone Conference set for 5/3/2016 at 10 :00 AM before Judge Katherine Polk Failla.) John Doe (Officer at C 74), John Doe (Transportation Officer), Hurnst (Psychologist), Soto, City of New York and Jane Doe (At C 74) terminated. (Signed by Judge Katherine Polk Failla on 3/29/2016) Copies Mailed By Chambers. (spo) (Main Document 112 replaced on 3/29/2016) (tro).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------X
:
GREGORY GALBERTH,
:
:
:
Plaintiff,
:
:
v.
:
CAPTAIN WASHINGTON, et al.,
:
:
Defendants. :
:
----------------------------------------------------- X

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: March 29, 2016
______________

14 Civ. 691 (KPF)
OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:
On January 27, 2014, Plaintiff Gregory Galberth initiated this action
against employees of two different correctional facilities in this District, Rikers
Island and Downstate Correctional Facility. Initially, Plaintiff identified these
employees in his complaint (the “Complaint”) as “Captain Washington,” “Ms.
Hurnst,” and various John and Jane Does. 1 After this Court issued an order
pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997) (per curiam), the
New York City Law Department (the “Law Department”) sent Plaintiff additional
information about the individuals involved in his case; in response to that
information, Plaintiff filed an amended complaint (the “Amended Complaint”)
that added “C.O. Soto” and the City of New York as defendants. In brief, the
Amended Complaint alleges that the defendants showed deliberate indifference

1

Plaintiff did not list Ms. Hurnst in the caption of the Complaint, but the body of the
Complaint referred to Ms. Hurnst as “Defendant No. 7” and contained allegations that
she had violated Plaintiff’s rights. (Dkt. #2 at 9-10). For the individual defendants who
have been identified, no first name has been provided to the Court.

to Plaintiff’s medical needs and/or used excessive force against him. On
August 24, 2015, Defendants Washington and the City of New York
(collectively, “Defendants”) moved to dismiss many of Plaintiff’s claims. 2 For
the reasons that follow, Defendants’ motion is granted in part and denied in
part.
BACKGROUND 3
A.

Factual Background
The metes and bounds of Plaintiff’s Amended Complaint are not entirely

clear. Taking its cues from Defendants’ recitation of the facts, which Plaintiff
indicates is correct (see Pl. First Opp. 25), the Court understands Plaintiff to be
alleging that various individuals committed misconduct at Rikers Island and at
Downstate Correctional Facility, as detailed in the remainder of this section.
1.

Plaintiff’s Rikers Island Claims
a.

The Deliberate Indifference Claims

According to the Amended Complaint, a number of individuals working
at the constituent facilities on Rikers Island were deliberately indifferent to

2

The other defendants have neither been served nor appeared in this matter.

3

The facts contained in this Opinion are drawn from the Amended Complaint (“Am.
Compl.”) (Dkt. #45), as well as the declaration of Daniel H. Oliner (“Oliner Decl.”) (Dkt.
#84), and are taken as true for purposes of the pending motion. Faber v. Metro. Life Ins.
Co., 648 F.3d 98, 104 (2d Cir. 2011) (when reviewing a complaint for failure to state a
claim, the court will “assume all well-pleaded factual allegations to be true” (internal
quotation marks omitted)). For convenience, the Court will refer to Defendants’ opening
brief as “Def. Br.” (Dkt. #85); Plaintiff’s first opposition brief as “Pl. First Opp.” (Dkt.
#89); Plaintiff’s second opposition brief as “Pl. Second Opp.” (Dkt. #90); Defendants’
reply brief as “Def. Reply” (Dkt. #93); Plaintiff’s sur-reply as “Pl. Sur.” (Dkt. #98); and
Defendants’ sur-sur-reply as “Def. Sur.” (Dkt. #102). In addition, when the Court cites
a particular page in one of Plaintiff’s submissions, it is citing to the page numbers
assigned by the Court’s electronic case filing (or “ECF”) system.

2

Plaintiff’s need for mental health treatment, in violation of his Eighth
Amendment rights. Plaintiff alleges that, on April 8 or 9, 2011, he arrived at
the Anna M. Kross Detention Center, and was subsequently assigned to Unit
C-74. (Am. Compl. 2). After his arrival, Plaintiff claims, he “asked to see
mental health [professionals] but was ignored by many shift officers.” (Id. at 3).
Plaintiff states that he specifically requested help from the “B officer” 4 and
“Captain Washington” as they walked by his cell, but neither took him to see a
mental health provider. (Id.).
Plaintiff alleges that, after this incident, he tried to hang himself, and the
“B officer” went over to his cell to ask what he was doing. (Am. Compl. 3).
Plaintiff once again explained that he needed mental health care, and in
response, the “B officer” swore at him and said: “I do what I want.” (Id.).
Following his conversation with the “B officer,” Plaintiff allegedly waited
several hours on the floor for an escort officer to take him over to the “bull
pen[].” (Am. Compl. 8-9). While Plaintiff was being escorted to the “bull pen[],”
he encountered Captain Washington in the hallway, and tried to explain what
had happened earlier in the day. (Id. at 9). Captain Washington allegedly told
Plaintiff that no one had called her about the situation. (Id.).
Once in the “bull pen[],” Plaintiff waited overnight with no bed and no
pillow. (Am. Compl. 9). In the morning, Plaintiff was taken to a “mental

4

The Court understands that housing units at Rikers Island are divided into “A” and “B”
sides, with one correction officer assigned to each side. See, e.g., Garcia v. John Doe
No. 1 Hous. Officer, No. 13 Civ. 557 (VB), 2014 WL 3887861, at *1 (S.D.N.Y. June 19,
2014).

3

observation trailer,” where he saw a “doctor for mental health.” (Id.). This
doctor assigned Plaintiff to Unit C-73, which Plaintiff identifies as a “mental
health unit” located within the George Motchan Detention Center, another
facility at Rikers Island. (Id. at 9-10).
While Plaintiff was in C-73, he met “psychologist Ms. Hurnst,” and
explained to her “the fear and the abuse” he had experienced in C-74. (Am.
Compl. 10). Plaintiff allegedly told Ms. Hurnst that he was “afraid to go back”
to C-74. (Id.). In addition, Defendant told Ms. Hurnst that he had previously
been mistreated at Clinton Correctional Facility, and was afraid that if he went
back to that facility, corrections officers would retaliate against him. (Id.). 5
Nevertheless, according to Plaintiff, the staff at C-73 asked him to “get on [a]
bus to . . . Clinton.” (Id.). Before getting on the bus, Plaintiff says he “tried to
swallow Clorox,” and a sergeant was called. (Id. at 10-11). The sergeant told
an “escorting officer” to restrain Plaintiff and transport him upstate. (Id.).
b.

The Excessive Force Claims

Plaintiff also alleges that, while he was waiting at the Anna M. Kross
Center, the “B officer” told him to step out of his cell and kneel. (Am.
Compl. 8). When Plaintiff complied, the “B officer” allegedly “started stomping

5

While the Amended Complaint alleges that prison staff at both Rikers Island and
Downstate Correctional Facility failed to prevent Plaintiff’s transfer to Clinton
Correctional Facility, the Court does not believe that the Amended Complaint brings
any claims against Clinton personnel. (See Am. Compl. 2 (explaining that the events
giving rise to Plaintiff’s claims took place on Rikers Island and at Downstate
Correctional Facility)). As a result, the Court will only address the events that occurred
on Rikers Island and at Downstate Correctional Facility.

4

[on] both [of Plaintiff’s] legs.” (Id.). Then, the “B officer … squeezed [Plaintiff’s]
fingers together as he walked [Plaintiff] down the hallway.” (Id.).
In addition, Plaintiff alleges that while he was leaving C-73, the
“escorting officer” threw him “up against a wall” and “put these plastic cuffs
on.” (Am. Compl. 11). Plaintiff claims that the cuffs were so tight they “cut[]
[his] blood circulation off.” (Id. at 12). He also alleges that the officers who
transported him off of Rikers Island, including C.O. Soto, used “double[]
restraints,” which caused Plaintiff’s legs and hands to swell. (Id. at 12-13).
2.

Plaintiff’s Downstate Correctional Facility Claims
a.

The Deliberate Indifference Claim

Plaintiff claims that, while he was at the Downstate Correctional Facility
in April 2011, he “explain[ed] to psychologist Ms. Green” that he had been
harassed and threatened while he was incarcerated at Clinton Correctional
Facility. (Am. Compl. 11; see also Pl. First Opp. 16 (correcting date on
Amended Complaint to make clear that Plaintiff saw mental health personnel
at Downstate in April 2011)). Nevertheless, Plaintiff alleges that Ms. Green
“still put [him] on [an] upstate bus” and would “not help … protect [him] from
these bad officials [at] Clinton.” (Am. Compl. 12). In addition, Plaintiff alleges
that Ms. Green “refused to give [him] the proper treatment” for his mental
illness because she was “working with the corrupt administration.” (Id. at 15).
b.

The Excessive Force Claim

Plaintiff alleges that he was brought into Downstate “strap[p]ed and
chain[ed] down like [an] animal.” (Am. Compl. 14). He said that such severe
5

restraints were not necessary because he did not “fight … nor struggle with the
transportation officer.” (Id.).
3.

Plaintiff’s Monell Claim

Finally, Plaintiff alleges that the City of New York is liable for any
violations of his constitutional rights because it failed to “train” or “supervise”
its employees on Rikers Island, and this failure to train or supervise
contributed to “deliberate indifference” to his health and safety.
(Am. Compl. 19). See generally Monell v. Dep’t of Soc. Servs. of the City of New
York, 436 U.S. 658, 691 (1978) (discussing circumstances under which
municipal entity can be liable under 42 U.S.C. § 1983).
B.

Procedural Background
Plaintiff initiated this action on January 27, 2014. (Dkt. #2).

Nevertheless, Plaintiff did not complete the necessary paperwork to serve the
named defendants. (See Dkt. #8). Consequently, on April 25, 2014, this Court
ordered Plaintiff to show cause, by May 9, 2014, why the case should not be
dismissed for failure to prosecute. (Id.). Because Plaintiff did not provide an
explanation for his inaction, the Court dismissed his suit without prejudice on
May 12, 2014. (Dkt. #12).
By letter dated May 19, 2014, Plaintiff asked the Court to re-open his
case. (Dkt. #16). Plaintiff explained that he had not received the paperwork
necessary to effect service because he had been housed in the mental health
unit and then an outside hospital. (Id.). As a result, the Court re-opened the
case on June 2, 2014. (Dkt. #17).
6

On November 4, 2014, Plaintiff filed his Amended Complaint. (Dkt. #45).
As of the date of this Opinion, Captain Washington and the City of New York
are the only defendants who have been served. On August 24, 2015,
Defendants filed the instant motion to dismiss. (Dkt. #82). Plaintiff filed
several different sets of papers opposing the motion (Dkt. #89-90, 92, 98), and
Defendants were given an opportunity to respond to all of these papers (see
Dkt. #100). Briefing on this matter closed on December 4, 2015, when
Defendants filed their sur-sur-reply. (Dkt. #102).
DISCUSSION
A.

Applicable Law
1.

Motions to Dismiss for Failure to State a Claim

When a court considers a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), it must “draw all reasonable inferences in Plaintiff[’s] favor,
assume all well-pleaded factual allegations to be true, and determine whether
they plausibly give rise to an entitlement to relief.” Faber v. Metro. Life Ins. Co.,
648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted) (quoting
Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009)). A plaintiff will
survive a motion to dismiss if he alleges “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569
(2007); see also In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007)
(“[W]hile Twombly does not require heightened fact pleading of specifics, it does
require enough facts to nudge [a plaintiff’s] claims across the line from
conceivable to plausible.” (internal quotation marks omitted)).
7

The Court is not, however, bound to accept “conclusory allegations or
legal conclusions masquerading as factual conclusions.” Rolon v. Hennenman,
517 F.3d 140, 149 (2d Cir. 2008) (citation omitted); accord Biro v. Conde Nast,
807 F.3d 541, 544 (2d Cir. 2015); see also Harris v. Mills, 572 F.3d 66, 72 (2d
Cir. 2009) (“[A]lthough a court must accept as true all of the allegations
contained in a complaint, that tenet is inapplicable to legal conclusions, and
threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” (internal quotation marks omitted)).
The Court is mindful that, “when the plaintiff proceeds pro se, as in this
case, a court is obliged to construe his pleadings liberally, particularly when
they allege civil rights violations,” and to interpret them as raising the strongest
arguments they suggest. McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir.
2004); see also Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010) (“It is well
established that a court is ordinarily obligated to afford a special solicitude to
pro se litigants.” (collecting cases)). “That said, the liberal pleading standard
accorded to pro se litigants is not without limits, and all normal rules of
pleading are not absolutely suspended.” Hill v. City of New York, No. 13 Civ.
8901 (KPF), 2015 WL 246359, at *2 (S.D.N.Y. Jan. 20, 2015) (internal
quotation marks omitted).
2.

The PLRA and Its Exhaustion Requirement

The Prison Litigation Reform Act (the “PLRA”), 42 U.S.C. § 1997e,
provides that an inmate cannot bring a federal suit regarding “prison
conditions” until the inmate has exhausted all “available” administrative
8

remedies. Id. § 1997e(a). Lawsuits regarding “prison conditions” include
‘‘all … suits about prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force or some other
wrong.’’ Hill v. Curcione, 657 F.3d 116, 124 (2d Cir. 2011) (quoting Porter v.
Nussle, 534 U.S. 516, 532 (2002)).
In Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004), the Second Circuit
explained how a court should determine whether an inmate has satisfied the
PLRA’s exhaustion requirement. At the outset, the court should decide
whether the inmate’s claims are covered by a prison grievance procedure, and
whether the inmate has utilized that procedure. See id. at 681-86. If the
inmate’s claims were covered, but the inmate has neglected to file a grievance,
the court must engage in a three-part inquiry. See id. at 686. First, the court
must ask whether the grievance procedure was “in fact ‘available’ to the
prisoner.” Id. Second, the court must consider “whether the defendants may
have forfeited the 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 plaintiff’s failure to exhaust as a defense.” Id. (citations omitted). Finally,
“the court should consider whether ‘special circumstances’ have been plausibly
alleged that justify ‘the prisoner’s failure to comply with administrative
procedural requirements.’” Id. (quoting Giano v. Goord, 380 F.3d 670, 676 (2d
Cir. 2004)).

9

After Hemphill, the Supreme Court explained that, under the PLRA, an
inmate cannot bring suit unless he or she has “proper[ly] exhaust[ed]”
administrative remedies. Woodford v. Ngo, 548 U.S. 81, 88 (2006). “Proper
exhaustion demands compliance with an agency’s deadlines and other critical
procedural rules because no adjudicative system can function effectively
without imposing some orderly structure on the course of its proceedings.” Id.
at 90-91. Applying the “proper exhaustion” rule, the Court held that, when an
inmate fails to comply with procedural rules for a prison grievance system, and
this non-compliance prevents the inmate from obtaining administrative relief,
the inmate cannot bring suit in federal court. See id. at 93, 103.
The Second Circuit has not decided whether Hemphill — which allows an
inmate to circumvent a prison grievance system in an extraordinary case —
can be reconciled with the Woodford Court’s admonition that “a prisoner must
complete the administrative review process in accordance with the applicable
procedural rules, including deadlines, as a precondition to bringing suit in
federal court.” 548 U.S. at 88 (emphasis added); see Amador v. Andrews, 655
F.3d 89, 102-03 (2d Cir. 2011) (declining to answer this question); Ruggiero v.
County of Orange, 467 F.3d 170, 176 (2d Cir. 2006) (same). However, this
Court believes that it can. As Justice Breyer noted in his Woodford
concurrence, the Woodford Court was guided by principles of administrative
law and habeas corpus law, and these principles are not entirely rigid.
Woodford, 548 U.S. at 103-04 (Breyer, J., concurring). Rather, both bodies of
case law recognize that, in rare instances, it may be permissible for a federal
10

court to excuse a plaintiff’s failure to comply with procedural rules and
regulations. Id.
Furthermore, the Woodford Court sought to thwart any “deliberate
strategy” to avoid a prison grievance system and bring a claim directly to
federal court. Woodford, 548 U.S. at 88; see also id. at 95 (“A prisoner who
does not want to participate in the prison grievance system will have little
incentive to comply with the system’s procedural rules unless noncompliance
carries a sanction[.]”). Crucially, however, an inmate cannot utilize Hemphill as
part of a “deliberate strategy” to catapult a dispute into federal court because
Hemphill only excuses compliance with administrative procedures in situations
that are beyond an inmate’s control. More specifically, Hemphill excuses
compliance with prison procedures when: (i) a prison affirmatively declines the
“opportunity to correct [its] own error[],” id. at 94; or (ii) an inmate — through
no fault of his own — is unable to bring a grievance. See Hemphill, 380 F.3d at
686. Thus, the animating concerns of Woodford are not present in the
circumstances described in Hemphill. For these reasons, the Court believes
that Hemphill remains good law, and will apply that decision to the facts of this
case. See, e.g., Stevens v. City of New York, No. 12 Civ. 1918 (JPO), 2012 WL
4948051, at *4-6 (S.D.N.Y. Oct. 11, 2012) (explaining why Hemphill remains
good law after Woodford); see also Smith v. City of New York, No. 12 Civ. 3303
(CM), 2013 WL 5434144, at *9 (S.D.N.Y. Sept. 26, 2013) (“In the absence of a
clear indication that Hemphill has been overruled, this Court has no choice but

11

to treat it as good law.”); Winston v. Woodward, No. 05 Civ. 3385 (RJS), 2008
WL 2263191, at *6 (S.D.N.Y. May 30, 2008) (same).
B.

Analysis
1.

The Court Will Not Dismiss Any of Plaintiff’s Claims for Failure
to Exhaust Administrative Remedies

“[I]nmates are not required to specially plead or demonstrate
exhaustion.” Jones v. Bock, 549 U.S. 199, 216 (2007). Rather, failure to
exhaust administrative remedies is an affirmative defense that should generally
be asserted in an answer. See id. at 212. Nevertheless, a defendant may bring
a Rule 12(b)(6) motion based on an inmate’s failure to exhaust available
remedies if “nonexhaustion is apparent from the face of the complaint.” Roland
v. Smith, 907 F. Supp. 2d 385, 388 (S.D.N.Y. 2012); see also McCoy v. Goord,
255 F. Supp. 2d 233, 251 (S.D.N.Y. 2003). Here, Defendants argue, “it is clear
from the face of [the] Amended Complaint that [Plaintiff] has failed to exhaust”
certain of his claims against Rikers Island personnel. (Def. Br. 9).
Plaintiff’s claims that Rikers Island staff members were deliberately
indifferent to his medical needs, as well as his claims that Rikers Island staff
used unnecessary restraints to transport him, were covered by the Rikers
Island grievance procedure. (See generally Oliner Decl., Ex. D (describing the
grievance procedure)). 6 Nevertheless, the Amended Complaint expressly states

6

By contrast, Plaintiff’s claim that the “B officer” “stomp[ed]” on his legs (Am. Compl. 8);
his claim that that same officer “squeezed [his] fingers together” (id.); and his claim that
another officer threw him “up against a wall” (id. at 11) were not grievable. (See Oliner
Decl., Ex. D at 3 (“Inmate allegations of assault … by either staff or inmates are not
grievable under the grievance mechanism.”)).

12

that Plaintiff did not file a grievance against Defendants. 7 Thus, the Court will
apply the three-pronged Hemphill inquiry to determine whether this failure to
file a grievance was excusable.
The face of the Amended Complaint suggests that administrative
remedies were “available” in this case. Hemphill, 380 F.3d at 686. Hemphill
provides that administrative remedies are “available” to a plaintiff if “a similarly
situated individual of ordinary firmness [would] … deem[] them available.” 380
F.3d at 688 (internal quotation marks omitted). Plaintiff’s Amended Complaint
states that he did not file a grievance because he was “mental[ly] ill.” (Am.
Compl. 4). However, it does not mention anything else that would prevent a
person of ordinary firmness in Plaintiff’s situation from pursuing
administrative remedies on Rikers Island. Under these circumstances, the
Court may presume that the only barrier to the Rikers Island grievance
procedure was Plaintiff’s illness. Cf., e.g., Ghee v. Ramos, No. 13 Civ. 632
(RWS), 2013 WL 7018543, at *1-2 (S.D.N.Y. Dec. 4, 2013) (explaining that,
when a prisoner alleges that he has followed a few steps of the grievance
process, a court may presume that the plaintiff has only followed those few
steps).
Turning to the second Hemphill factor, Defendants have not waived any
affirmative defense grounded in Plaintiff’s failure to exhaust administrative

7

Plaintiff used a standard form for pro se litigants to file his Amended Complaint. This
form asked, in relevant part, whether Plaintiff had “file[d] a grievance in the jail, prison,
or other correctional facility where [his] claim(s) arose.” (Am. Compl. 4). In response to
this question, Plaintiff answered “no.” (Id.).

13

remedies. Hemphill, 380 F.3d at 686. (See Def. Br. 10). Nor has Plaintiff
alleged any facts suggesting that Defendants have engaged in the sort of
misconduct that would estop them from asserting a failure-to-exhaust
argument. Cf. Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004) (per curiam)
(suggesting that corrections officers might be estopped from asserting a failureto-exhaust argument because they allegedly took steps to keep the plaintiff
from filing a grievance).
Nevertheless, the face of the Amended Complaint suggests that there
may be “‘special circumstances’ justifying … [P]laintiff’s failure” to utilize the
prison grievance system. Hemphill, 380 F.3d at 689. It is true that most of the
cases regarding “special circumstances” have involved plaintiffs who act in
accordance with a reasonable — though mistaken — interpretation of the
regulations governing the grievance process. See Winston v. Woodward, No. 05
Civ. 3385 (RJS), 2008 WL 2263191, at *10 (S.D.N.Y. May 30, 2008); McDowall
v. Metro. Corr. Ctr., No. 08 Civ. 8329 (BSJ), 2010 WL 649744, at *7 n.4
(S.D.N.Y. Feb. 22, 2010) (collecting cases). However, the Second Circuit has
explained that “special circumstances” include any circumstances that
“understandably” prevent an inmate from complying with the prison grievance
system. Giano, 380 F.3d at 678. It would be difficult to say that an inmate’s
failure to file a grievance is anything but “understandabl[e]” if it is caused by
circumstances completely beyond the inmate’s control, and those
circumstances categorically prevent the inmate from exhausting administrative
remedies. See Bennett v. James, 737 F. Supp. 2d 219, 227 (S.D.N.Y. 2010),
14

aff'd, 441 F. App’x 816 (2d Cir. 2011) (summary order) (considering the
possibility that an inmate’s failure to file a grievance could be justified if the
inmate were “physically or mentally unable to comply with the grievance
process”); Johnson v. N.Y.C. Dep’t of Corr., No. 13 Civ. 6799 (CM), 2014 WL
2800753, at *6 (S.D.N.Y. June 16, 2014) (same); cf. Hale v. Rao, 768 F. Supp.
2d 367, 377 (N.D.N.Y. 2011) (suggesting that, from a practical perspective, the
plaintiff’s illiteracy and low IQ rendered a prison grievance procedure
unavailable).
Here, Plaintiff says that he was unable to file a grievance because he was
“mental[ly] ill” during the relevant time period. (Am. Compl. 4). The fact that
Plaintiff suffers from mental illness is certainly something outside of his
control. Thus, if Plaintiff’s symptoms were severe enough that he was
absolutely incapable of complying with the relevant grievance procedures, his
illness would constitute a “special circumstance[]” that would excuse his failure
to pursue administrative remedies. Hemphill, 380 F.3d at 689. To be sure,
Plaintiff has not explained whether or how his symptoms rose to this level. At
this point in the litigation, however, he is not required to do so. Rather,
Plaintiff can survive a motion to dismiss by alleging that he failed to utilize the
prison grievance procedure for reasons that might amount to special
circumstances. See Roland, 907 F. Supp. 2d at 388 (“Dismissal under Rule
12(b)(6) for failure to exhaust is … appropriate only where nonexhaustion is

15

apparent from the face of the complaint.”). Plaintiff has cleared this low
hurdle. 8
This conclusion is consistent with the ruling of a sister court, which
refused to dismiss a case that Plaintiff filed in the Northern District of New
York. In the Northern District litigation, Plaintiff alleged that officers at Clinton
Correctional Facility had used excessive force against him. Galberth v. Durkin,
No. 14 Civ. 115 (BKS) (ATB), 2014 WL 7409915, at *1 (N.D.N.Y. Dec. 31, 2014)
(adopting the report and recommendation of the magistrate judge). The officers
moved to dismiss the case, arguing that Plaintiff had failed to exhaust his
administrative remedies. Id. at *6. However, the court rejected this argument.
Id. As the court explained, “[P]laintiff ha[d] at least attempted to allege that his
mental condition prevented him from filing his grievances,” and “[w]hether that
allegation [was] meritorious [could not] be determined solely by reviewing the
complaint.” Id. at *8. As a result, the court concluded that it would be
impermissible to grant the defendants’ Rule 12(b)(6) motion. Id.
Defendants here contend that Galberth v. Durkin is distinguishable
because, “in that case, [the] defendants did not address the issue of [P]laintiff’s
mental health as part of their motion practice, and as such, the [c]ourt could

8

Defendants contend that this case is analogous to Johnson v. New York City Department
of Correction, No. 13 Civ. 6799 (CM), 2014 WL 2800753 (S.D.N.Y. June 16, 2014), where
the court granted a motion to dismiss for failure to exhaust. But that case is not on all
fours with this one. In Johnson, the court had records indicating that the plaintiff
suffered from schizophrenia, but the plaintiff never “alleged that his schizophrenia
interfered with his ability to utilize the … grievance process.” Id. at *6. Here, by
contrast, Plaintiff explicitly alleges in the Amended Complaint that his “mental ill[ness]”
was the “reason[] why” he did not file a grievance. (Am. Compl. 4). Thus, in this case,
the Amended Complaint could reasonably be read to suggest that Plaintiff was mentally
incapable of pursuing administrative remedies.

16

only rely upon the pleadings in deciding whether to excuse [P]laintiff’s failure to
exhaust.” (Def. Reply 2-3). In this case, however, Defendants point to a variety
of documents to support their contention that Plaintiff was capable of using the
Rikers Island grievance system. (Id. at 3-4). See In re Thelen LLP, 736 F.3d
213, 219 (2d Cir. 2013) (“In adjudicating a motion to dismiss, a court may
consider … the complaint, any written instrument attached to the complaint as
an exhibit, any statements or documents incorporated in it by reference, and
any document upon which the complaint heavily relies.”). Specifically,
Defendants suggest that Plaintiff’s filings in this case — as well as his filings in
other civil cases — indicate that he is capable of managing civil litigation. (Id.).
Defendants reason that, if Plaintiff is well enough to follow the instructions of
civil courts, he is also well enough to utilize a prison grievance system. (See
id.).
The Court will assume, for the sake of argument, that it is proper to
consider these documents in connection with a motion to dismiss. The Court
will also assume that Plaintiff’s filings in this litigation demonstrate that he is
currently well enough to use the Rikers Island grievance system. Finally, the
Court will assume that Plaintiff’s filings in other cases show that he was well
enough to use the grievance system at some point in the past. Nevertheless,
even with these assumptions in place, the Court cannot jump to the conclusion
that: (i) Plaintiff was well enough to participate in the grievance system during
the short time that he spent on Rikers Island; or (ii) the Rikers Island grievance
system was still available to Plaintiff after he was transferred to a different
17

correctional facility. (See Am. Compl. 12). See, e.g., Hartry v. County of
Suffolk, 755 F. Supp. 2d 422, 433-34 (E.D.N.Y. 2010) (suggesting that “an
administrative remedy may properly be considered ‘unavailable’ if the act or
occurrence that gives rise to the claim occurs shortly before the inmate is
transferred” to a different facility that uses a different grievance procedure);
Burns v. Moore, No. 99 Civ. 966 (LMM) (THK), 2002 WL 91607, at *6 (S.D.N.Y.
Jan. 24, 2002) (“This Court can imagine a situation where a prisoner could
plausibly argue that he was effectively denied access to an administrative
remedy because he could not file a grievance ... after he was transferred from
the facility in which his complaint arose.”); Muller v. Stinson, No. 99 Civ. 624
(TJM), 2000 WL 1466095, at *2 (N.D.N.Y. Sept. 25, 2000) (“If, in fact,
Plaintiff … did not have an opportunity to avail himself of the grievance
procedure because of his transfer, then he is not required to exhaust his
administrative remedies.”). Consequently, the Court will not dismiss Plaintiff’s
claims against Rikers Island personnel based on his alleged failure to exhaust
administrative remedies. 9
It may well be the case, however, that after some discovery, Defendants
will be able to file a summary judgment motion based on evidence that Plaintiff
had the ability to utilize the prison grievance system. 10 As a result, the Court

9

It is not clear whether Defendants are also arguing that the Court should dismiss
Plaintiff’s claims against Ms. Green and the Doe Defendants at Downstate Correctional
Facility for failure to exhaust administrative remedies. (See Def. Br. 6, n.4). However,
even if Defendants were making this argument, the Court rejects it for the same reasons
discussed in the text.

10

The Court considered converting Defendants’ motion to dismiss into a motion for
summary judgment, see Roland v. Smith, 907 F. Supp. 2d 385, 388 (S.D.N.Y. 2012), but

18

will entertain a request that discovery be conducted in two phases: (i) a first
phase in which the parties exchange information regarding Plaintiff’s ability to
file a grievance during the relevant time periods; and (ii) a second phase in
which the parties exchange information about other factual issues in this case.
2.

Plaintiff’s Claims Against C.O. Soto, Ms. Green, the Doe
Defendants, and the City of New York Must Be Dismissed as
Untimely

Defendant City of New York argues that Plaintiff’s claims against it are
barred by the statute of limitations. (See Def. Br. 12-19). In addition,
Defendants suggest that some of Plaintiff’s claims against other defendants,
named but as yet unserved, are untimely, and urges the Court to dismiss those
claims sua sponte. (See id.). For the reasons that follow, the Court will dismiss
Plaintiff’s Claims against C.O. Soto, Ms. Green, the Doe Defendants at both
Rikers Island and Downstate Correctional Facility, and the City of New York.
a.

The Court Has the Power to Dismiss Plaintiff’s Untimely
Claims Against Defendants Who Have Not Yet Appeared

When a plaintiff proceeds in forma pauperis, a district court must
dismiss any of portion of the complaint that “fails to state a claim on which
relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). Recognizing this statutory
mandate, the Second Circuit has held that a district court can dismiss an
indigent plaintiff’s claims sua sponte if those claims are barred by the
applicable statute of limitations. See Milan v. Wertheimer, 808 F.3d 961, 96364 (2d Cir. 2015). Thus, this Court has considered, sua sponte, whether
it believes that some discovery on the nature of Plaintiff’s illness will aid its analysis of
Plaintiff’s ability to exhaust administrative remedies.

19

Plaintiff’s claims against C.O. Soto, Ms. Green, and the Doe Defendants are
time-barred. (See Dkt. #3 (granting Plaintiff’s request to proceed in forma
pauperis)). To aid its consideration of this issue, and to ensure that Plaintiff
receives the fairest assessment of his claims, the Court has taken into account
Plaintiff’s arguments that his claims against the unserved Defendants are
timely. (See Pl. First Opp. 18-23).
b.

Plaintiff’s Claims Against C.O. Soto, Ms. Green, the Doe
Defendants, and the City of New York Are Untimely

“Section 1983 does not provide a specific statute of limitations. Thus,
courts apply the statute of limitations for personal injury actions under state
law.” Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013) (citing Owens v.
Okure, 488 U.S. 235, 249-51 (1989); Pearl v. City of Long Beach, 296 F.3d 76,
79 (2d Cir. 2002)). In New York, personal injury actions are subject to a threeyear statute of limitations. See Pearl, 296 F.3d at 79. The limitations period
begins to run when: (i) the plaintiff knows or has reason to know of the injuries
caused by an individual defendant, see Singleton v. City of New York, 632 F.2d
185, 191 (2d Cir. 1980), cert. denied, 450 U.S. 920 (1981); or (ii) the plaintiff
knows or has reason to know that a municipal defendant has an
unconstitutional “policy or custom,” see Pinaud v. County of Suffolk, 52 F.3d
1139, 1157 (2d Cir. 1995).
Generally, plaintiffs are not allowed to circumvent New York’s three-year
statute of limitations by filing a complaint against a John Doe defendant within
the three-year window, and then amending the complaint to name the

20

defendant at a later time. Hogan, 738 F.3d at 517 (citing Aslanidis v. U.S.
Lines, Inc., 7 F.3d 1067, 1075 (2d Cir. 1993)). As a result, if a plaintiff seeks to
amend a complaint to name a John Doe defendant, and the statute of
limitations has already run, the plaintiff must show that the amended
complaint “relates back” to the original complaint under Federal Rule of Civil
Procedure 15(c). Id.
In this case, Plaintiff knew or had reason to know of the injuries caused
by C.O. Soto, Ms. Green, and the Doe Defendants at the time those injuries
occurred, i.e., in April 2011. (See Am. Compl. 2 (noting that the Rikers Island
incidents occurred on April 8 and 9, 2011); Pl. First Opp. 16 (correcting
Amended Complaint to reflect that Plaintiff met with mental health personnel
at Downstate in April 2011)). Similarly, taking the allegations in the Amended
Complaint as true, Plaintiff knew or should have known that the City had an
unconstitutional policy or custom by April 2011, when multiple officers at
Rikers Island declined his requests for mental health treatment, even after they
learned of his suicide attempt. (See id. at 3, 8-9). As a result, Plaintiff was
required to file any claims that arose out of his injuries by April 2014. Plaintiff
filed the underlying Complaint before this date, naming Captain Washington,
Ms. Hurnst, and several John Doe defendants who worked on Rikers Island.
(See Dkt. #2). In November 2014, Plaintiff filed his Amended Complaint,
naming C.O. Soto, Ms. Green, and the City of New York. (See Dkt. #45). In
addition, the Court anticipates that, at some point in the future, Plaintiff may
seek to file a Second Amended Complaint naming more of the John Doe
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Defendants. Thus, the Court must determine whether the Amended
Complaint — and any potential Second Amended Complaint — “relate back” to
the original Complaint under Federal Rule of Civil Procedure 15(c). Hogan, 738
F.3d at 517.
One could argue that Plaintiff’s Amended Complaint, or potential Second
Amended Complaint, would “relate back” to the original Complaint under
Federal Rule of Civil Procedure 15(c)(1)(C) or 15(c)(1)(A). Ultimately, however,
these arguments could not succeed.
i.

The Amended Complaint Does Not Relate Back to
the Original Complaint Under Federal Rule of Civil
Procedure 15(c)(1)(C)

For an amended complaint to “relate back” to an original complaint
under Rule 15(c)(1)(C), it must meet four criteria: (i) any new claim “must have
arisen out of conduct set out in the original pleading”; (ii) any newly named
defendant “must have received such notice that it will not be prejudiced in
maintaining its defense”; (iii) any newly named defendant must have known
that “but for a mistake of identity, the original action would have been brought
against [him]”; and (iv) “the second and third criteria [must be] fulfilled within
120 days of the filing of the original complaint, and … the original complaint
[must have been] filed within the limitations period.” Barrow v. Wethersfield
Police Dept., 66 F.3d 466, 468-69 (2d Cir. 1995) (emphasis added). 11 In this

11

The 120-day requirement is derived from former Federal Rule of Civil Procedure 4(m).
The Court will apply the 120-day requirement because it was still operative when this
motion was filed. (Under the most current version of the rules, the 120-day
requirement has been converted into a 90-day requirement.)

22

case, Plaintiff’s Amended Complaint — and any potential Second Amended
Complaint — cannot satisfy the third criterion.
Plaintiff could not plausibly maintain that he would have named C.O.
Soto or the Rikers Island Doe Defendants in his original pleading, “but for a
mistake of identity.” The Court’s correspondence with Plaintiff both before and
after it issued a Valentin order demonstrates that Plaintiff did not know the
identity of C.O. Soto or the Rikers Island Doe Defendants when he filed his
Complaint. However, the Second Circuit has held that a lack of knowledge
about a defendant’s identity cannot be characterized as a “mistake of identity.”
Hogan, 738 F.3d at 517-18. As a result, Rule 15(c)(1)(C) “preclude[s] relation
back” in cases like this one, where a plaintiff does not know who the
defendants are until the statute of limitations has run. Id. (citing Tapia-Ortiz v.
Doe, 171 F.3d 150, 152 (2d Cir. 1999); Barrow, 66 F.3d at 470).
Similarly, Plaintiff could not claim that, “but for a mistake of identity,” he
would have named Ms. Green or the Downstate Doe Defendants at an earlier
time. Plaintiff’s original Complaint did not make allegations against any
personnel at Downstate Correctional Facility. (See generally Dkt. #2). Thus,
Plaintiff could not plausibly claim that his original Complaint simply named
the wrong Downstate staff members.
Finally, Plaintiff could not plausibly assert that, “but for a mistake of
identity,” he would have brought his claims against the City of New York in the
original Complaint. The original Complaint does not name any administrative
agency. (See generally Dkt. #2). Nor does it name any other entity that may
23

have had supervisory authority over the original defendants. (See generally
id.). Thus, Plaintiff’s Amended Complaint — and any potential Second
Amended Complaint — cannot satisfy the criteria for relation back under
Federal Rule of Civil Procedure 15(c)(1)(C).
ii.

The Amended Complaint Does Not Relate Back to
the Original Complaint Under Federal Rule of Civil
Procedure 15(c)(1)(A)

Federal Rule of Civil Procedure 15(c)(1)(A) offers a second basis for
relation back, providing that an amended pleading relates back to an original
pleading when “‘the law that provides the applicable statute of limitations
allows relation back.’ … Thus, under Rule 15(c)(1)(A), [courts] must determine
if New York state law provides a ‘more forgiving principle of relation back’ in the
John Doe context, compared to the federal relation back doctrine under Rule
15(c)(1)(C).” Hogan, 738 F.3d at 518. The Second Circuit has held that New
York law in fact provides a “more forgiving” principle of relation back for cases
involving John Doe defendants. Id. Section 1024 of the New York Civil
Practice Law and Rules allows a plaintiff “who is ignorant, in whole or in part,
of the name or identity of a [defendant], [to] proceed against such [defendant]
as an unknown party.” If the plaintiff later learns the name of the defendant,
he may amend the original complaint to reflect that name. See N.Y. C.P.L.R.
§ 1024 (McKinney 2013); Hogan, 738 F.3d at 518-19.
To take advantage of Section 1024, a plaintiff must meet two
requirements. “First, the [plaintiff] must exercise due diligence, prior to the
running of the statute of limitations, to identify the defendant by name.
24

Second, the [plaintiff] must describe the John Doe party in such form as will
fairly apprise the party that [he] is the intended defendant.” Hogan, 738 F.3d
at 519 (internal quotation marks and citations omitted).
Here, Plaintiff cannot take advantage of Section 1024 because he did not
exercise due diligence to identify Defendants “prior to the running of the statute
of limitations.” Hogan, 738 F.3d at 519 (emphasis added). Plaintiff waited
more than two and one-half years after the alleged misconduct to file his
Complaint. Nevertheless, Plaintiff has not alleged or argued that: (i) he was
using that time to prepare his lawsuit; or (ii) he took some other step during
that stretch of time (such as writing a letter to someone at Rikers Island or
Downstate Correctional Facility) to try to identify the individuals who had
allegedly ignored his medical needs or used excessive force against him.
Consequently, Plaintiff cannot show that he exercised due diligence to identify
C.O. Soto, Ms. Green, the Doe Defendants, or the City of New York during the
limitations period.
As Plaintiff notes, he did take several steps to try to identify Defendants
after April 9, 2014. (See Pl. First Opp. 18-23). However, Plaintiff’s diligence
after the limitations period ended cannot compensate for his lack of diligence in
the two and one-half years following the incidents at Rikers Island and
Downstate Correctional Facility. See Williams v. United States, No. 07 Civ.
3018 (RJS) (THK), 2010 WL 963474, at *13 (S.D.N.Y. Feb. 25, 2010)
(recommending that district court find C.P.L.R. § 1024 inapplicable because of
the incarcerated plaintiff’s failure to demonstrate diligence), report and
25

recommendation adopted, No. 07 Civ. 3018 (RJS) (THK), 2010 WL 963465
(S.D.N.Y. Mar. 16, 2010). Thus, the Court will dismiss Plaintiff’s claims against
C.O. Soto, Ms. Green, the Doe Defendants at Rikers Island and Downstate
Correctional Facility, and the City of New York.
3.

Plaintiff Has Stated a Claim Against Captain Washington, But
Not Against Ms. Hurnst

Finally, Defendants contend that Plaintiff has failed to state a claim of
deliberate indifference against either of the two remaining defendants, Captain
Washington and Ms. Hurnst. The Court will address each of these arguments
in turn.
a.

Plaintiff Has Stated a Claim Against Captain Washington

Under the Eighth Amendment, it is unconstitutional for prison staff to
show “deliberate indifference to serious medical needs of prisoners.” Estelle v.
Gamble, 429 U.S. 97, 104-05 (1976). “This is true whether the indifference is
manifested by prison doctors in their response to the prisoner’s needs or by
prison guards in intentionally denying or delaying access to medical care or
intentionally interfering with the treatment once prescribed.” Id. (footnotes
omitted).
To prevail on a constitutional claim of deliberate indifference, a plaintiff
must prove that he suffered from an objectively serious medical condition,
which the defendants knew of and deliberately disregarded. Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). In the Second Circuit, serious
medical conditions include serious psychiatric conditions. Atkins v. County of
Orange, 372 F. Supp. 2d 377, 408 (S.D.N.Y. 2005).
26

Taking the allegations in the Amended Complaint as true, there can be
no doubt that Plaintiff was suffering from a serious medical condition when he
arrived at Rikers Island: Plaintiff alleges that, on April 8, his mental illness was
so pronounced that he tried to commit suicide. (Am. Compl. 3). See Young v.
Choinski, 15 F. Supp. 3d 172, 184 (D. Conn.), reconsideration denied in part,
15 F. Supp. 3d 194 (D. Conn. 2014) (“[C]ase law within this Circuit recognizes
that depression combined with severe anxiety attacks or suicide attempts is a
serious medical need.”) (internal quotation marks omitted). In addition, when
the allegations in the Amended Complaint are construed in the light most
favorable to Plaintiff, they suggest that Captain Washington knew of and
deliberately disregarded this condition. Plaintiff claims that, shortly after he
tried to hang himself, he spotted Captain Washington in the hallway, and tried
to explain what had happened earlier in the day. (Am. Compl. 9). At this stage
in the proceedings, the Court must presume that Plaintiff’s explanation
included a statement that he had just tried to kill himself. Nevertheless,
Captain Washington did not arrange for Plaintiff to receive immediate attention;
instead she allowed Plaintiff to wait overnight in the “bull pen[].” (Id.). This
response to Plaintiff’s plight, as alleged, shows a deliberate disregard for his
medical needs. Cf. Young, 15 F. Supp. 3d at 185 (refusing to dismiss a
deliberate indifference claim because there was “a genuine issue of material
fact as to whether [the defendant] intentionally refused to take action to
summon mental health or medical personnel to evaluate and treat [the plaintiff]
after [the defendant] became aware of [his] suicidal thoughts”).
27

b.

Plaintiff Has Not Stated a Claim Against Ms. Hurnst

By contrast, the Court must dismiss Plaintiff’s allegations against
Ms. Hurnst sua sponte because those allegations fail to state a claim upon
which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff alleges
that Ms. Hurnst disregarded his psychiatric condition by allowing him to be
transferred to Clinton Correctional Facility after he had explained his fears
regarding that facility. (Am. Compl. 10). Even if Ms. Hurnst — as a
psychologist — had any authority to stop the transfer, this Court cannot find
that allowing Plaintiff to be sent to another facility with a mental health
program constituted a deliberate disregard for Plaintiff’s medical needs.
CONCLUSION
For the foregoing reasons, Plaintiff’s claims against Ms. Hurnst, C.O.
Soto, Ms. Green, the Doe Defendants, and the City of New York are dismissed.
However, Plaintiff still has a viable claim against Captain Washington. The
Clerk of Court is ordered to terminate docket entry 82.
The parties are ordered to appear for a telephone conference with the
Court on Tuesday, May 3, 2016, at 10:00 a.m. Counsel for Defendant
Washington shall arrange for both parties to call the Court at [phone]
pursuant to the scheduling order separately issued on this date.
SO ORDERED.
Dated:

March 29, 2016
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

A copy of this Order was mailed by Chambers to:
Gregory Galberth
03A0661
Marcy Correctional Facility
Box 3600
Marcy, New York, 13403-3600

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