Rivera v. E.M.T.C. Medical Dept. et al
MEMORANDUM AND ORDER granting 21 Motion to Dismiss; granting 32 Motion to Dismiss. For the foregoing reasons, Defendants' motion to dismiss is GRANTED and Plaintiff's claims are dismissed with prejudice. The Court further finds pur suant 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 appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). (As further set forth in this Memorandum & Order.) This resolves Dkt. Nos. 21 and 32. The Clerk of Court is directed to close the case.. (Signed by Judge Alison J. Nathan on 1/7/2016) (mro)
DATE J/lLED: JA~l0~l1ill
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
EMTC Medical Dep't et al.,
ALISON J. NATHAN, District Judge:
On March 13, 2015, Plaintiff John Rivera, proceedingpro se and informa pauperis, filed
the above-captioned action. See Dkt. Nos. 1, 2. On October 14, 2015, Defendants City of New
York, Officer Atiya Banks, and Officer Domingo Diaz moved to dismiss Plaintiffs Second
Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). See Dkt. No. 32. For the
reasons articulated below, Defendants' motion to dismiss is GRANTED.
On February 2, 2015, Plaintiff was incarcerated on Riker's Island. See Sec. Arn. Comp.
at 2. Plaintiff alleges that on that date, he began experiencing stomach pains. Id. According to
Plaintiff, Officer Banks ignored him when he reported his stomach pains, but Officer Diaz called
the prison clinic. Id. at 3. Plaintiff alleges that while at the clinic, he "waited for over 6 hours
without seeing anybody." Id. After this incident, Plaintiff filed a grievance at the prison, which
was "still in progress" at the time of the filing of the Second Amended Complaint. Id. at 4.
Plaintiff initiated the instant action on March 13, 2015. See Dkt. No. 1. On March 27,
2015, the Court dismissed Plaintiffs claims against several defendants. See Dkt. No. 6. On May
5, 2015, Plaintiff filed an Amended Complaint adding new defendants. See Dkt. No. 11. On
September 28, 2015, Plaintiff filed a Second Amended Complaint limiting his suit to the City of
New York and Officers Domingo Diaz and Atiya Banks. See Dkt. No. 30. On October 14,
2015, these Defendants moved to dismiss the Second Amended Complaint on the ground that
Plaintiff failed to exhaust his administrative remedies. See Dkt. No. 32. Plaintiff failed to
oppose the motion to dismiss and did not respond to the Court's November 17, 2015 reminder
order. See Dkt. Nos. 36, 37. As a result, the Court deemed the motion fully briefed on
December 14, 2015. See Dkt. No. 39.
When considering a motion to dismiss, a court must read pro se pleadings "liberally" and
"interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d
787, 790 (2d Cir. 1994). At this stage, the Court "accept[s] as true all factual allegations in the
complaint, and draw[s] all reasonable inferences in the plaintiffs favor." Barrows v. Burwell,
777 F.3d 106, 111 (2d Cir. 2015). In addition to matters in the pleadings, courts "may also look
to public records ... in deciding a motion to dismiss. Blue Tree Hotels Inv. (Canada), Ltd. v.
Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004).
To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must plead "sufficient
factual matter, accepted as true, to 'state a claim to relief that is plausible on its face."' Aschroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 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."
Id. A plaintiffs "failure to oppose a 12(b)(6) motion cannot itself justify dismissal of a
complaint." Haas v. Commerce Bank, 497 F. Supp. 2d 563, 564 (S.D.N.Y. 2007) (citing McCall
v. Pataki, 232 F.3d 321, 322 (2d Cir. 2000)). On the contrary, "the sufficiency of a complaint is
a matter of law that the court is capable of determining based on its own reading of the pleading
and knowledge of the law." Id. (quoting McCall, 232 F.3d at 322).
Pursuant to the Prison Litigation Reform Act ("PLRA"), "[n]o action shall be brought
with respect to prison conditions under[§ 1983], 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); see also Woodford v. Ngo, 548 U.S. 81, 93
(2006). In order to properly exhaust administrative remedies under the PLRA, "prisoners must
'complete the administrative review process in accordance with the applicable procedural
rules '-rules that are defined not by the PLRA, but by the prison grievance process itself."
Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting Woodford, 548 U.S. at 88). Because failure to
exhaust is an affirmative defense, Plaintiff need not plead failure to exhaust. Id. at 216.
However, dismissal under Rule 12(b)( 6) is nevertheless appropriate if failure to exhaust "is clear
from the face of the complaint." McCoy v. Goard, 255 F. Supp. 2d 233, 251 (S.D.N.Y. 2003).
The City of New York Department of Correction has adopted the "Inmate Grievance and
Request Program" ("IGRP"), which sets forth the administrative review process for inmates. 1 To
initiate a grievance under the IGRP, an inmate must "complete an IGRP Statement form." IGRP
If an inmate disagrees with the initial resolution of the grievance, the inmate can
appeal and request a formal hearing before the Inmate Grievance Resolution Committee. Id.
IV.G.5.b; IV.H.1. After the Inmate Grievance Resolution Committee issues its decision, the
The Court, like many other courts in this district, takes judicial notice of IGRP as a matter of public record. See
Myers v. City ofNew York, 11-CV-8525 (PAE), 2012 WL 3776707, at *4 n. 6 (S.D.N.Y. Aug. 29, 2012) (collecting
cases). The full text ofIGRP is available online. See N.Y. City Dep't of Correction, Directive 3376 (effective Sept.
10, 2012), available at
inmate can "appeal to the commanding officer." Id.
ii IV.H.4.b. After the Commanding
Officer issues its decision, the inmate can "appeal to the Central Office Review Committee." Id.
ii IV.I.2.b. An inmate must complete all of these steps before he is deemed to have exhausted his
administrative remedies. See Hernandez v. Coffey, 582 F.3d 303, 305 (2d Cir. 2009) ("Section
1997e(a) requires proper exhaustion, which means using all steps that the agency holds out.")
(quoting Woodford, 548 U.S. at 90) (alterations and internal quotation marks omitted).
Plaintiff's Second Amended Complaint indicates that adjudication of his grievance is
"still in progress." Sec. Am. Comp. at 4. Because Plaintiff admits that he has not completed "all
steps" of the grievance process, see Hernandez, 582 F.3d at 305, his failure to exhaust "is clear
from the face of the complaint" and his claim is barred by the PLRA. See McCoy, 255 F. Supp.
2d at 251; see also Blocker v. City ofNew York, No. 14-CV-7215 (PKC), 2015 WL 4002588, at
*3 (S.D.N.Y. July 1, 2015); Burgos v. Craig, 307 F. App'x 469, 471 (2d Cir. 2008). As a result,
his claims must be dismissed under Rule 12(b)( 6) for failure to "state a claim to relief that is
plausible on its face."' Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
For the foregoing reasons, Defendants' motion to dismiss is GRANTED and Plaintiff's
claims are dismissed with prejudice. The Court further finds 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 appeal. See Coppedge v. United States, 369 U.S.
438, 444-45 (1962).
This resolves Dkt. Nos. 21 and 32. The Clerk of Court is directed to close the case.
Dated: January _ _, 2016
New York, New York
United States District Judge
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