Evans v. Rockland County Sheriff's Dept et al
Filing
49
OPINION & ORDER re: 41 MOTION to Dismiss . filed by Louis Falco, III, Stobbe, Rockland County Jail Medica Staff, Mirakaj, George Bodner, Arok, Falco, Rockland County Sheriff's Dept, Spillman, George Barbearra. For t he foregoing reasons, the Defendants' motion to dismiss is GRANTED, and the Plaintiff's complaint is dismissed. The Court respectfully directs the Clerk to terminate the motion at ECF No. 41 and close the case. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 4/29/2016) (mml)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ORREL EVANS,
Plaintiff,
-againstROCKLAND COUNTY SHERIFF'S DEPT.;
SHERIFF LOUIS FALCO III; SERGEANT
FALCO, RCJ; OFFICER GEORGE BODNER,
RCJ; OFFICER GEORGE BARBEARRA, RCJ;
OFFICER, SERGEANT MIRAKAJ #342 RCJ;
OFFICER, SERGEANT AROK; OFFICER
SERGEANT STOBBE; ROCKLAND COUNTY
JAIL MEDICAL STAFF; OFFICER SPILLMAN,
14 CV 7379 (NSR)
OPINION & ORDER
'
Defendants.
NELSONS. ROMAN, United States District Judge:
Orrel Evans ("Plaintiff') brings this action pursuant to 42 U.S.C. § 1983 against
defendants Rockland County Sheriffs Depaitment; Sheriff Louis Falco III; Sergeant Falco;
Officer George Bodner; Officer George Barbearra; Officer, Sergeant Mirakaj #342; Officer,
Sergeant Arok; Officer Sergeant Stobbe; Rockland County Jail Medical Staff; and Officer
Spillman (collectively, "Defendants") alleging use of excessive force, deliberate indifference to
his medical needs, mail tampering, denial of religious services, and cruel and unusual
punishment. Plaintiff additionally alleges state tort law claims of assault and medical
malpractice. Before the Court is the Defendants' motion to dismiss. Plaintiff has not submitted
opposition to the Defendants' motion. For the following reasons, Defendants' motion to dismiss
is GRANTED.
USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
l>OC II:
.
DATE FILED: l( /"2-ti (?A:>((, ·
-·--========:=!
BACKGROUND
The following facts are derived from the § 1983 Complaint filed by Plaintiff. During the
period in dispute, Plaintiff was an inmate at Rockland County Correctional Facility (“RCCF”).
(Compl., ECF No. 1, at 2.) On March 3, 2014, Plaintiff was in a prison cell and witnessed
Officer Lowvine attack an inmate wearing handcuffs. (Id. at 3.) Officer Lowvine saw that
Plaintiff was watching and began to attack Plaintiff. (Id.) Officer Lowvine knocked Plaintiff to
the floor with a hard object then called for backup, and several officers began to stomp, kick,
punch, and mace Plaintiff. (Id.) Plaintiff asserts that he was denied medical treatment after this
incident. (Id.) Additionally, during his period of confinement until his release on September 19,
2014, Plaintiff was allegedly harassed, denied religious services, and denied access to the mail—
specifically, officers took stamps off of his letters and sent them back to him. (Id.) Plaintiff also
asserts that racial slurs were used against him. (Id.)
Plaintiff indicates that he did not file a grievance but that this is “not a grievance issue.”
(Id. at 4.)
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(c), “[a]fter the pleadings are closed—but early
enough not to delay trial—a party may move for judgment on the pleadings.” Fed. R. Civ. P.
12(c). Courts evaluate a Rule 12(c) motion for judgment on the pleadings under the same
standard as a Rule 12(b)(6) motion for failure to state a claim. U.S. ex rel. Krol v. Arch Ins. Co.,
46 F. Supp. 3d 347, 349 (S.D.N.Y. 2014) (citing Nicholas v. Goord, 430 F.3d 652, 657 n.8 (2d
Cir. 2005). Thus, in considering a motion to dismiss brought pursuant to Rule 12(c), the court
must accept as true all allegations in the complaint and draw all reasonable inferences in favor of
the non-moving party. Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). “To survive a Rule
2
12(c) motion, the complaint must contain sufficient factual matter to ‘state a claim to relief that
is plausible on its face.’” Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir. 2012) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plaintiff “must provide the grounds upon
which his claim rests through factual allegations sufficient ‘to raise a right to relief above the
speculative level.’” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)
(quoting Twombly, 550 U.S. at 555). Where a party has moved under Rule 12(c), “[a] complaint
will only be dismissed if it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.” Patel v. Searles, 305 F.3d 130, 135 (2d
Cir. 2002) (internal quotations omitted).
The court should read pro se complaints “‘to raise the strongest arguments that they
suggest,’” Kevilly v. New York, 410 F. App’x 371, 374 (2d Cir. 2010) (summary order) (quoting
Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006)). “However, even pro se plaintiffs asserting
civil rights claims cannot withstand a motion to dismiss unless their pleadings contain factual
allegations sufficient to raise a right to relief above the speculative level.” Jackson v. N.Y.S.
Dep’t of Labor, 709 F. Supp. 2d 218, 224 (S.D.N.Y. 2010) (quoting Twombly, 550 U.S. at 555)
(internal quotation marks omitted).
Where a Plaintiff fails to oppose a motion to dismiss a complaint, 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). On an unopposed motion to dismiss—
and thus, also a Rule 12(c) motion—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 [] does not
3
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). 1
DISCUSSION
I.
Federal Claims
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)).
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). 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] motion to dismiss pursuant to Rule 12(b)(6) for failure to exhaust should
1
“In its review, the Court is entitled to consider facts alleged in the complaint and documents attached to it
or incorporated in it by reference, documents ‘integral’ to the complaint and relied upon in it.” Heckman v. Town of
Hempstead, 568 Fed. App’x 41, 43 (2d Cir. 2014). The Court may also consider “facts of which judicial notice may
properly be taken under Rule 201 of the Federal Rules of Evidence.” Id. This includes court filings. In re Enron
Corp., 379 B.R. 425, 431 n. 18 (S.D.N.Y.2007) (“Judicial notice of public records such as court filings, is clearly
appropriate.”).
4
be granted only if ‘nonexhaustion is clear from the face of the complaint.’” Lopez v. Cipolini,
No. 14-CV-2441 KMK, 2015 WL 5732076, at *4 (S.D.N.Y. Sept. 30, 2015) (citing Lovick v.
Schriro, No. 12–CV–7419, 2014 WL 3778184, at *4 (S.D.N.Y. July 25, 2014) (alterations and
internal quotation marks omitted)). See also Lee v. O'Harer, No. 13–CV–1022, 2014 WL
7343997, at *3 (N.D.N.Y. Dec. 23, 2014) (“Dismissal under Rule 12(b)(6) for failure to exhaust
is appropriate if such failure is evidenced on the face of the complaint and incorporated
documents.”); Sloane v. Mazzuca, No. 04–CV–8266, 2006 WL 3096031, at *4 (S.D.N.Y. Oct.
31, 2006) (“[B]y characterizing non-exhaustion as an affirmative defense, the Second Circuit
suggests that the issue of exhaustion is generally not amenable to resolution by way of a motion
to dismiss.” (internal quotation marks omitted)).
The PLRA’s exhaustion requirement applies to a prisoner who has been released from
incarceration subsequent to filing § 1983 complaint relating to prison conditions. See Collins v.
Goord, 438 F. Supp. 2d 399, 409–10 (S.D.N.Y. 2006). Specifically, if a prisoner is released
from prison during an action, yet failed to exhaust administrative remedies where there was
“ample opportunity” to exhaust prior to release, his or her action is subject to dismissal. See
Berry v. Kerik, 366 F.3d 85, 88 (2d Cir. 2003). Dismissal is appropriate for failure to exhaust
when a prisoner remained incarcerated for “several months after the onset of the conditions that
gave rise to his complaints and prior to his release.” Berry, 366 F.3d at 88. See also Gibson v.
City Municipality of New York, 692 F.3d 198, 201 (2d Cir. 2012) (citing Harris v. City of N.Y.,
607 F.3d 18, 21–22 (2d Cir. 2010)) (“the relevant time at which a person must be ‘a prisoner’
within the meaning of the PLRA in order for the Act's restrictions to apply is ‘the moment the
plaintiff files his complaint’”).
5
In the instant case, Plaintiff claims that his allegations are “not a grievance issue.”
However, as previously noted, the Supreme Court and the Second Circuit have made clear that
the PLRA and its exhaustion requirement apply to all inmate suits about prison life. Giano v.
Goord, 380 F.3d 670, 675 (2d Cir. 2004) (quoting Porter v. Nussle, 534 U.S. 516, 532 (2002)).
Additionally, based on Plaintiff’s admission that he did not file a grievance, it is clear from the
face of the complaint that Plaintiff failed to exhaust his administrative remedies. (See Compl.,
ECF No. 1, at 4.) Moreover, Plaintiff’s release does not excuse his failure to exhaust. With
regards to the March 3 incident and alleged failure to provide medical care, Plaintiff had over
five months to utilize RCCF’s grievance process. As to the remaining issues, Plaintiff’s
complaint does not specify the dates on which the violations allegedly occurred. However,
Plaintiff signed his complaint on August 28, 2014 and was released from incarceration on
September 19, 2014. (Compl., ECF No. 1, at 7; Pro Se Memorandum Regarding Change of
Address, ECF No. 4.) Thus, at the very least, Plaintiff had over three weeks during which he
could have filed an administrative grievance. The Court therefore concludes that Plaintiff had
“ample opportunity” to exhaust prior to his release, and his failure to exhaust is therefore fatal to
his federal claims. Berry, 366 F.3d at 88.
II.
State Claims
Plaintiff additionally asserts certain claims that are grounded in New York State common
law—specifically, the assault and medical malpractice claims. “In any civil action of which the
district courts have original jurisdiction, the district courts shall have supplemental jurisdiction
over all other claims that are so related to claims in the action within such original jurisdiction
that they form part of the same case or controversy under Article III of the United States
Constitution.” 28 U.S.C. § 1367(a). “The district court may decline to exercise supplemental
6
jurisdiction over a claim under subsection (a) if the district court has dismissed all claims over
which it has original jurisdiction." Id.§ 1367(c)(3). "In the usual case in which all federal-law
claims are eliminated before trial, the balance of factors to be considered under the pendent
jurisdiction doctrine-judicial economy, convenience, fairness, and comity-will point toward
declining to exercise jurisdiction over the remaining state-law claims." Dilaura v. Power Auth.
OfNY, 982 F.2d 73, 80 (2d Cir. 1992).
This appears to be the usual case. Seeing neither contrary argument from Plaintiff nor any
contrary authority that might compel the Court to retain jurisdiction despite the elimination of all
federal claims, this Court dismisses all state law claims as against all Defendants, without
prejudice to any right Plaintiff may have to renew those claims in state court if timely.
CONCLUSION
For the foregoing reasons, the Defendants' motion to dismiss is GRANTED, and the
Plaintiffs complaint is dismissed. The Court respectfully directs the Clerk to terminate the
motion at ECF No. 41 and close the case.
Dated:
April ~ 2016
White Plains, New York
l
SO ORDERED:
~
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?