Lovell v. Kaplan et al

Filing 33

OPINION & ORDER re: 26 AMENDED MOTION to Dismiss filed by Ford, Sabina Kaplan, Jane Doe Goldstein, Fusco, 25 MOTION to Dismiss filed by Ford, Sabina Kaplan, Jane Doe Goldstein, Fusco. For the foregoing reasons, the State Defendants' motion is GRANTED, and Plaintiffs' claims against the State Defendants are dismissed in accordance with this opinion. The Court respectfully directs the Clerk to terminate the motions at ECF Nos. 25 and 26 and close the case. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 10/27/2015) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HEATHER LOVELL,
Plaintiff,
14 cv 3359 (NSR)
-againstOPINION & ORDER
NEW YORK STATE DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
NELSONS. ROMAN, United States District Judge:
Heather Lovell ("Plaintiff') brings this 42 U.S.C. § 1983 action against defendants
Sabina Kaplan, Superintendent of Bedford Hills Correctional Facility ("Superintendent Kaplan"),
Sergeant Brett Fusco ("Fusco"), Corrections Officer Eric Ford ("Ford"), and Lori Goldstein, M.D.
("Dr. Goldstein") (collectively, "State Defendants").' Before the Court is the State Defendants'
motion to dismiss. Plaintiff has not submitted opposition to this motion. For the following
reasons, the State Defendants' motion to dismiss is GRANTED.

BACKGROUND
The following facts are derived from the § 1983 Complaint filed by Plaintiff and the
declaration of Jeffery Hale, Assistant Director of the Inmate Grievance Program at the New
York State Department of Corrections and Community Supervision ("DOCS"), submitted by
Defendants in suppmt of their motion to dismiss.

1 An

additional defendant, John Doe, is listed on the docket. However, this appears to be an
administrative enur as the complaint only lists four (4) defendants and does not have any allegations as to a fiflh

defendant, John Doe."
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On November 14, 2008, Plaintiff was relocated to the long-term care medical unit at
Bedford Hills due to her diabetes, severe allergies, dizziness, and lasting effects of a broken
foot. (Compl., p. 3.) To properly manage her diabetes, Plaintiff requires three meals per day,
as well as servings of fruit and juice “4 to 5 times a day, plus a late night snack.” (Id., p. 4.)
Plaintiff alleges that defendants Fusco and Ford constantly threaten and harass her because of
her special medical needs. (Id., p. 3.) Specifically, Plaintiff claims that Fusco and Ford insist
that Plaintiff is making “hooch,” or alcohol, with her provisions of fruit and juice. (Id.)
Plaintiff contends that Fusco and Ford “scream[ed] and rant[ed]” about her making
hooch, subjected her to constant room searches, and confiscated her food and juice. (Id., p. 3–
4.) Fusco and Ford allegedly wrote Plaintiff multiple Tier III misbehavior tickets 2 and
subjected her to keeplock a number of times. 3 (Id., p. 3.) Additionally, Plaintiff claims that
Ford threatened to “smash” her in the face and Fusco promised to “make sure [she] go[es] to
the box.” 4 (Id.)
While most of Plaintiff’s claims involve Ford and Fusco, the complaint also alleges
that Dr. Goldstein failed to provide her with a diabetic diet, causing her blood sugar to go “off
the scale.” (Id., p. 4.) Finally, Plaintiff alleges that Superintendent Kaplan was made aware of
these serious issues but has not taken action. (Id.)

2

Pursuant to 7 N.Y.C.R.R. § 270.3, there are three “tiers of disciplinary hearings,” which “serve the
purpose of determining allegations of rule violations contained in misbehavior reports[.]” 7 N.Y.C.C.R. §
270.3(a). “Tier III hearings concern the most serious violations and may result in unlimited [Special Housing
Unit] confinement (up to the length of the sentence) and recommended loss of ‘good time’ credits.” Hynes v.
Squillace, 143 F.3d 653, 655 n. 1 (2d Cir. 1998).
3
Keeplock is “a form of administrative segregation in which the inmate is confined to his cell, deprived
of participation in normal prison routine, and denied contact with other inmates.” Gittens v. LeFevre, 891 F.2d
38, 39 (2d Cir. 1989).
4

The Court presumes that “box” is a reference to keeplock.

2

In her time at the long-term care unit, Plaintiff has filed three grievances with the
Inmate Grievance Resolution Committee (“IGRC”). (Declaration of Jeffery Hale, December 18,
2014 (“Hale Decl.”), ¶9.) Only one of those grievances is relevant to the current complaint: BH18817-14, dated March 9, 2014 (the “March Grievance”). (Id. ¶12; Exhibit D to the Hale Decl., p.
4.) The instant action in large part restates Plaintiff’s complaints that were asserted in the March
Grievance. The IGRC was unable to resolve the grievance, and the grievance was referred to the
superintendent. (Exhibit D, pp. 6, 12.) On May 1, 2014, Superintendent Kaplan released her
decision, finding that Plaintiff had been issued a Tier III misbehavior report and had been found
“not guilty.” (Id., p. 2.) Superintendent Kaplan’s decision was silent as to Plaintiff’s claims of
harassment by Fusco and Ford. (Id.) Plaintiff did not appeal Superintendent Kaplan’s decision to
the Central Office Review Committee (“CORC”). (Id.)

STANDARD OF REVIEW
To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
for failure to state a claim upon which relief can be granted, a complaint must include
“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 Atlantic Corp. v. Twombly,
550 U.S. 554, 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. (citing Twombly, 550 U.S. at 556).
“When there are well-pleaded factual allegations [in the complaint], a court should
assume their veracity and then determine whether they plausibly give rise to an entitlement to
relief.” Iqbal, 556 U.S. at 679. The court must “take all well-plead factual allegations as true,
and all reasonable inferences are drawn and viewed in a light most favorable to the plaintiff[
].” Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996). However, the presumption of truth does not
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extend to “legal conclusions, and threadbare recitals of the elements of the cause of action.”
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556 U.S. 662) (internal
quotation marks omitted). A plaintiff must provide “more than labels and conclusions” to
show he is entitled to relief. Twombly, 550 U.S. at 555.
Where a Plaintiff fails to oppose a motion to dismiss a complaint for failure to state a
claim, automatic dismissal is not merited. In such a situation, “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.” McCall v. Pataki, 232 F.3d 321, 322–323 (2d Cir. 2000).
As with all Rule 12(b)(6) motions, on an unopposed motion to dismiss, a court is to “assume
the truth of a pleading's factual allegations and test only its legal sufficiency.” Id. at 322. “If a
complaint is sufficient to state a claim on which relief can be granted on its face, the plaintiff's
failure to respond to a Rule 12(b)(6) motion does not warrant dismissal.” Accurate Grading
Quality Assur., Inc. v. Thorpe, No. 12 CIV. 1343 ALC, 2013 WL 1234836, at *5 (S.D.N.Y.
Mar. 26, 2013).
DISCUSSION
Under the Prison Litigation Reform Act of 1995 (“PLRA”), “[n]o action shall be
brought with respect to prison conditions under section 1983 of this title ... 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). “The PLRA's exhaustion requirement
‘applies to all inmate suits about prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force or some other wrong.’” Giano v.
Goord, 380 F.3d 670, 675 (2d Cir. 2004) (quoting Porter v. Nussle, 534 U.S. 516, 532
(2002)).

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Exhausting all remedies “means using all steps that the agency holds out, and doing so
properly (so that the agency addresses the issues on the merits).” Washington v. Chaboty, No.
09 CIV. 9199 PGG, 2015 WL 1439348, at *6 (S.D.N.Y. Mar. 30, 2015) (quoting Hernandez
v. Coffey, 582 F.3d 303, 305 (2d Cir. 2009)) (internal quotation marks and citations omitted).
“[B]ecause ‘it is the prison's requirements, and not the PLRA, that define the boundaries of
proper exhaustion [,]’ ... [t]he exhaustion inquiry ... requires that [the court] look at the state
prison procedures and the prisoner's grievance to determine whether the prisoner has
complied with those procedures.” Espinal v. Goord, 558 F.3d 119, 124 (2d Cir. 2009)
(quoting Jones v. Bock, 549 U.S. 199, 218 (2007)). A plaintiff must invoke all available
administrative mechanisms, including appeals, “through the highest level for each claim.”
Varela v. Demmon, 491 F.Supp.2d 442, 447 (S.D.N.Y. 2007); Veloz v. New York, 339
F.Supp.2d 505, 514 (S.D.N.Y. 2004). The defendants bear the burden of demonstrating that
Plaintiff's claim is not exhausted. Key v. Toussaint, 660 F.Supp.2d 518, 523 (S.D.N.Y. 2009).
A person detained or incarcerated at a DOCS facility must exhaust all of the steps of
the DOC Inmate Grievance Resolution Program (“IGRP”). See Robinson v. Henschel, No. 10
Civ. 6212(PGG), 2014 WL 1257287, at *10 (S.D.N.Y. March 26, 2014) (“the PLRA requires
complete exhaustion in accordance with the administrative procedures within [DOCS]”)
(internal quotation marks and citations omitted). The IGRP provides a three-tiered process for
adjudicating inmate complaints: (1) the prisoner files a grievance with the IGRC, (2) the
prisoner may appeal an adverse decision by the IGRC to the superintendent of the facility, and
(3) the prisoner then may appeal an adverse decision by the superintendent to the Central
Officer Review Committee (“CORC”). See Espinal, 558 F.3d at 125 (citing N.Y. Comp.
Codes R. & Regs., tit. 7, § 701.7 (1999)).

5

With regards to the alleged conduct of Fusco and Ford, Plaintiff submitted the March
Grievance to the IGRC and received a decision from the superintendent. Though Plaintiff’s
claim was processed as a “false accusation” grievance with regards to her misbehavior report,
this does not prevent the IGRC from addressing the remaining claims of harassment,
unconstitutional searches, deprivation of property, etc. A Plaintiff does not have to “articulate
legal theories” in order to exhaust her administrative remedies; “it is sufficient [if her]
grievance adequately described the alleged misconduct.” Espinal, 558 F.3d at 128 (internal
citations omitted). Thus, Plaintiff sufficiently raised all issues with regards to Fusco and Ford
with the IGRC. Plaintiff failed, however, to exhaust all steps of the administrative relief
because she failed to appeal the superintendent’s decision to the CORC. See Bain v. Velez,
No. 09 CIV. 2316 (DLC), 2010 WL 624956, at *4 (S.D.N.Y. Feb. 19, 2010) (“In choosing not
to appeal to the CORC the superintendent's unresponsiveness to his grievance, plaintiff failed
to “properly exhaust” his remedies as required by the PLRA.”). Therefore, Plaintiff has not
fulfilled the PLRA’s exhaustion requirement with regards to her claims against Fusco and
Ford, and the Court dismisses these claims accordingly.
With regards to Plaintiff’s claims against Dr. Goldstein and Superintendent Kaplan,
Plaintiff has not filed any grievance whatsoever. 5 The March Grievance does not contain any
allegations of misconduct on behalf of Dr. Goldstein or Superintendent Kaplan. Because
Plaintiff also failed to properly exhaust her remedies as required by the PLRA with regards to
the claims against Dr. Goldstein and Superintendent Kaplan, the Court similarly dismisses
these claims.

5

Plaintiff has filed three grievances since 2008, but none of them refer to misconduct on behalf of Dr.
Goldstein or Superintendent Kaplan. See Hale Decl.; Exhibits B-D to the Hale Decl.

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CONCLUSION
For the foregoing reasons, the State Defendants' motion is GRANTED, and Plaintiffs'
claims against the State Defendants are dismissed in accordance with this opinion. The Court
respectfully directs the Clerk to terminate the motions at ECF Nos. 25 and 26 and close the
case.

.ff'\
Dated:

SO ORDERED:

October.2-1, 2015
White Plains, New York

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