Bello v. Long

Filing 37

OPINION AND ORDER re: 30 MOTION a. filed by Humberto Bello, 23 MOTION to Dismiss the Amended Complaint. filed by B. Long. Defendant's motion to dismiss is GRANTED. Plaintiff is granted leave to file a second amended com plaint, which must be filed by June 6, 2016, using the Second Amended Complaint form attached hereto. The completed Second Amended Complaint form must be mailed to the Pro Se Clerk at the United States Courthouse, 300 Quarropas Street, White Plain s, New York 10601. If plaintiff does not file a second amended complaint by June 6, 2016, this case will be dismissed with prejudice. By separate order, the Court will schedule a telephone case management conference for a date in the near future. At the conference, the parties shall be prepared to discuss whether it may be more efficient for plaintiff to withdraw this case without prejudice, after which he could fully exhaust his administrative remedies and then, if appropriate, re-file t he case. If plaintiff is willing to withdraw the case without prejudice in order to fully exhaust his administrative remedies, the Court will expect defendant to agree that the time for plaintiff to administratively exhaust has not expired. The Cle rk is instructed to terminate the motion. (Docs. ##23, 30). The Court certifies 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 an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). ( Amended Pleadings due by 6/6/2016.) (Signed by Judge Vincent L. Briccetti on 4/25/2016) Copies Mailed By Chambers. (rj)

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UNITED STATES DISTRICT COURT
SOL PHERN DISTRICT OF NEW YORK

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C)

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HLA4BLRFO BELL 0
Plaintiff,
OPINION AND ORDER
.

15CV2148(VB)
CO. BRYAN LONG.
Defendant.

o ..c:

Qç)
Briccetti, J.:
Plaintiff Ilumberto Bello, an inmate proceeding

brings this Section 1983 action

alleging defendant Correction Officer Bryan Long cut plaintifrs fingers by slamming a window
on them. Plaintiff filed an amended complaint on March 20, 2015. (Doe. #5).
Defendant moves to dismiss the amended complaint for failure to exhaust administrative
remedies under the Prison Litigation Reform Act of 1995 (the PLRA’). (Does. ##23, 30).
For the reasons set forth below, defendants’ motion is GRANTED. However, plaintiff is
granted leave to file a second amended complaint, as specified below.
The Court has jurisdiction under 28 U.S.C.

§

1331.

BACKGROUND
In deciding the pending motion, the Court accepts as true all well-pleaded allegations in
the amended complaint and draws all reasonable inferences in favor of plaintiff.
The following facts are drawn from the complaint and documents on which plaintiff
relied in bringing suit DiFoleox.MSNBC Cable L.L.C.. 622 F.3d 104. 111 (2d Cir. 2010)
(noting the court may consider documents integral to the complaint if it is clear on the record that
no dispute exists regarding the authenticity or accuracy of the documents).

Defendant filed a notice to pç se litigant pursuant to Local Rule 12.1. (Doe. #26), as well
as a declaration of Jeffrey Hale. the Assistant Director of the Inmate Grievance Program at the

During the relevant time period, plaintiff was incarcerated at Sullivan Correctional
Facility in Fallsburg, New York. On March 5, 2015, at around 10:28 pm., defendant Long and
two non-party correction officers were giving plaintiff some unidentified property at plaintiff’s
cell. Plaintiff exchanged “bad word[s]” with one of the officers and the officers began to walk
away. Plaintiff alleges he had his hand “in the [little] windo[w] bars” and defendant Long turned
back towards his cell and “slam[med] the glass windo[w]” onto plaintiff’s fingers, causing
lacerations. (Am. Compl. at 3).
Plaintiff alleges he attempted to file a grievance arising from this incident, but defendant
Long told plaintiff he (Long) threw the grievance “in [the] garbage.” (Pl.’s Opp. at l),2
Plaintiff filed his complaint on March 19, 2015, (Doc. #2) and an amended complaint on
March 20, 2015. (Doc. #5). Defendant moved to dismiss the amended complaint on October 13,
2015. (Doc. #23).
DISCUSSION
I.

Legal Standard
In deciding a Rule 12(b)(6) motion, the Court evaluates the sufficiency of the operative

complaint under the “two-pronged approach” articulated by the Supreme Court in Ashcroft
v. Igbal, 556 U.S. 662, 679 (2009). First, plaintiff’s legal conclusions and “[t]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory statements,” are not entitled
to the assumption of truth and are thus not sufficient to withstand a motion to dismiss. j.. at 678;

New York State Department of Corrections and Community Supervision. (Doc. #25). Plaintiff
subsequently filed his medical records. (Doe. #35).
2

Plaintiff filed several documents on various forms requesting defendant’s motion to
dismiss “be dismissed.” (Doe. #30). The Court construes plaintiff’s submissions as his
opposition to defendant’s motion to dismiss,

Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, ‘[w]hen there are well-pleaded
factual allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief” Ashcroft v. Igbal. 556 U.S. at 679.
To survive a Rule 1 2(b)(6) motion, the allegations in the complaint must meet a standard
of “plausibility.” Ashcroft v. lgbal, 556 US. at 678; Bell AtI. Corp. v. Twomblv, 550 U.S. 544,
564 (2007). A claim is facially plausible ‘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. lgbal. 556 U.S. at 678. ‘The plausibility standard is not akin to a
probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.”

.

The Court must liberally construe submissions of p

litigants, and interpret them ‘to

raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d
471, 474 (2d Cir. 2006) (per curiam) (internal quotation marks and citation omitted). Applying
the pleading rules permissively is particularly appropriate when, as here, a pg se plaintiff alleges
civil rights violations. See Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir.
2008). “Even in a pro se case, however.

.

.

threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Chavis v. Chappius, 618 F.3d
I 62, 170 (2d Cir, 2010) (internal quotation marks and citation omitted). Nor may the Court
“invent factual allegations” plaintiff has not pleaded.
H,

j4

Exhaustion
The PLRA provides that “[n)o 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.

§

I 997e(a). This 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.” Porter v. Nussle, 534 U.S. 516, 532 (2002),
“Section 1997e(a) requires proper exhaustion—that is, using all steps that the agency
holds out, and doing so properly.” Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (quoting
Woodford v, Ngo, 548 U.S. 81, 90 (2006)). In New York, the applicable local rules are set forth
in the Inmate Grievance Procedure. See 7 N.Y.C.R.R.

§

701. An inmate initiates the grievance

procedure by filing a written grievance complaint with the Inmate Grievance Resolution
Committee (“IGRC”). 7 N.Y.C.R.R.

§

701.5(a). The IGRC has sixteen calendar days after

receipt of the grievance to resolve the matter informally. 7 N.Y.C.R.R.

§ 701.5(b).

Next, the

inmate can appeal from the IGRC determination to the superintendent of his or her facility.
7 N.Y.C.R.R.

3
§ 70 1.5(c).

Finally, an inmate can appeal from the superintendent’s

determination to the Central Office Review Committee (“CORC”), and the CORC must decide
the appeal within thirty calendar days from the date the appeal is filed. 7 N.Y.C.R.R.

§

701.5(d).

“Dismissal under Rule 12(b)(6) for non-exhaustion is appropriate only if a plaintiff’s
failure to exhaust is evident on the face of the complaint.” Pratt v. City of New York, 929
F.Supp.2d 314, 318 (S.D.N.Y. 2013).
Here, plaintiff’s failure to exhaust is evident on the face of his amended complaint.
Plaintiffs claim against defendant Long arises from events that took place on March 5, 2015.
Plaintiff filed this action on March 19, 2015, fourteen days after the day the alleged events
occurred. In light of the multistep grievance procedure and the facts alleged in the amended

Grievances alleging misconduct by staff towards an inmate, as here, are subject to an
expedited review, and are immediately referred to the superintendent of the facility. See
7 NY.CR.R. § 701,8.
4

complaint, it is not plausible that plaintiff exhausted his administrative remedies within fourteen
days. See Lopez v. Cipolini, 2015 WL 5732076, at *5 (SD.N.Y. Sept. 30, 2015) (holding it
implausible that plaintiff exhausted her administrative remedies within ten days); Perez v. City of
New York, 2915 WL 3652511, at *3

D.N.Y. June 11, 2015) (finding that the one-week period

between the events in question and the filing of the complaint showed the grievance process
could not have been completed).
4
111.

Failure to Exhaust Excused or Justified
There are three circumstances in which an inmate’s failure to exhaust his administrative

remedies fully may be excused: when “(i) administrative remedies are not available to the
prisoner; (ii) defendants have either waived the defense of failure to exhaust or acted in such [a)
way as to estop them from raising the defense; or (iii) special circumstances, such as a
reasonable misunderstanding of the grievance procedures, justify the prisoner’s failure to comply
with the exhaustion requirement.” Ruggiero v. Cnty. of Orange, 467 F.3d 1 70, 1 75 (2d Cir.
2006) (citing Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004)).
In his opposition to defendant’s motion, plaintiff alleges defendant Long told plaintiff he
threw plaintiffs grievance in the garbage, suggesting defendant Long prevented plaintiff from
filing a grievance. Liberally construed, plaintiff argues defendant should be estopped from
raising failure to exhaust as a defense due to defendant Long’s alleged obstruction of plaintiff’s
grievance.
The Court finds plaintiff has failed to allege facts giving rise to the inference defendant
must be estopped from raising the failure to exhaust defense.

Plaintiff will be provided with copies of all unpublished opinions cited in this decision.
See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir, 2009).
5

First, plaintiff has not alleged any facts as to how he attempted to submit the grievance,
or why defendant Long had access to the grievance before plaintiff submitted it.

Khudan v.

Lee. 2015 WL 5544316, at 5 (S.D.N.Y. Sept. 17, 2015) (the grievance procedure provides
inmates with multiple avenues” to submit grievances that do not rely on outgoing mail).
Indeed, plaintiff’s allegations with respect to the obstruction of his grievance have evolved over
time. In his initial complaint, plaintiff does not allege his grievance was thrown in the garbage,
but instead alleges a correction officer was ‘playing [with hisj mail.” (Compl. at 4). In his

amended complaint naming defendant Long as the correction officer who allegedly slammed the
window on his fingers, he alleges an unnamed, unidentified corrections officer threw his
grievance in the garbage. Only after defendant moved to dismiss did plaintiff allege it was
defendant Long who told him he (Long) threw the grievance in the garbage.
Second, even after defendant Long allegedly threw plaintiff’s grievance in the garbage,
plaintiff failed to allege he appealed to the superintendent, and then to the CORC. Plaintiff’s
failure to appeal, even after receiving no response to his initial grievance, may still constitute a
failure to exhaust administrative remedies. See Khudan v. Lee, 2015 WL 5544316, at *5
(collecting cases).

Accordingly, the amended complaint must be dismissed for failure to exhaust
administrative remedies under the PLRA. Allowing prisoners to avoid administrative exhaustion
rules with impunity would undermine Congress’s desire to “afford[] corrections officials time

and opportunity to address complaints internally before allowing the initiation of a federal case.”
Porter v. Nussle, 534 U.S. at 525.

6

IV,

Leave to Amend
The dismissal, however, is without prejudice, and the Court will allow plaintiff to amend

his complaint with respect to (i) the exhaustion of the grievance procedure, and (ii) his claim that
defndant Long threw his grievance in the garbage. District courts “should not dismiss [p
complaints] without granting leave to amend at least once when a liberal reading of the
complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222
F.3d 99, 112 (2d Cir. 2000) (internal quotation omitted).
Plaintiff is reminded that any factual allegation in the second amended complaint must be
true to the best of his knowledge, information, and belief. See Fed. R. Civ. P. 1 1(b)(3). Also,
the second amended complaint will completely replace the amended complaint; therefore,
plaintiff should include in the second amended complaint all information necessary to show that
he exhausted the grievance procedure or why his failure to exhaust should be excused. The
second amended complaint must also include all information necessary to state a plausible cause
of action against defendant Long under Section 1983.
Plaintiff is further directed to attach to his second amended complaint any grievances he
filed with respect to the alleged incident, as well as all evidence relating to his efforts to exhaust
his administrative remedies prior to commencing this action.
Plaintiff is directed to complete the Second Amended Complaint form attached to this
Opinion and Order.
CONCLUSION
Defendant’s motion to dismiss is GRANTED.
Plaintiff is granted leave to file a second amended complaint, which must be filed by June
6, 2016, using the Second Amended Complaint form attached hereto. The completed Second

Amended Complaint form must be mailed to the Pro Se Clerk at the United States Courthouse,
300 Quarropas Street, White Plains, New York 10601. If plaintiff does not file a second
amended complaint by June 6, 2016, this case will be dismissed with prejudice.
By separate order, the Court will schedule a telephone case management conference for a
date in the near future. At the conference, the parties shall be prepared to discuss whether it may
be more efficient for plaintiff to withdraw this case without prejudice, after which he could fully
exhaust his administrative remedies and then, if appropriate, re-file the case. If plaintiff is
willing to withdraw the case without prejudice in order to fully exhaust his administrative
remedies, the Court will expect defendant to agree that the time for plaintiff to administratively
exhaust has not expired.
The Clerk is instructed to terminate the motion. (Does. ##23, 30).
The Court certifies 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 an appeal.

$ Coppedge v.

United States, 369 U.S. 438, 444-45 (1962).

Dated: April 25, 2016
White Plains, NY
SO ORDERED:

Vincent L, Briccetti
United States District Judge

8

_______________________________________

______________________________________________________________________________
_________________________________________________________
________________________________
____

UNITED

STATES

SouTHERN

DISTRICT

DIsTRIcT

OF

_________
_____

_________
_______
______

COURT

NEW

YORK

tIn the space above enter the bill ,iame(s) of the plainti//ic).)

-against-

SECOND
AIIENDED
COMPLAINT
under the Civil Rights Act,
42 U.S.C. § 1983

Jury Trial:

Yes

i

No

(check one)

Civ.

(

)

(In the space above enter the full name(s) of the defendant(s). If you
cannot/it the names n/all of the defendants in the space provided,
please write “see attached” in the space above and attach an
additional sheet of paper with the full list of names. The names
listed in the above caption must he identical to those contained in
Part I, ,1ddresses should not he included here.)

I.

Parties in this complaint:

A.

List your name, identification number, and the name and address of your current place of
confinement. Do the same for any additional plaintiffs named. Attach additional sheets of paper
as necessary.

Plaintiff’s

Name
ID#
Current Institution
Address

B.

List all defendants’ names, positions, places of employment, and the address where each defendant
may he served. Make sure that the defendant(s listed below are identical to those contained in the
above caption. Attach additional sheets of paper as necessary.

Defendant No. I

Name

Shield

Where Currently Employed
Address

Rev. OI2OIO

I

_________

_________
_______________
_____
____________
_____

Defendant No. 2

______
________
_____________
_________

Name

Shield 4

Where Currently Employed
Address

Defendant No. 3

Name

Shield

Where Currently Employed
Address

‘.A ho did

Defendant No. 4

Name
Where Currently Employed

Shield 4
—

Address

Defendant No. 5

Name

Shield #

Where Currently Employed
Address

H.

Statement of Claim:

State as briefly as possible the facts of your case. Describe how each of the defendants named in the
caption of this complaint is involved in this action, along with the dates and locations of all relevant events.
You may wish to include further details such as the names of other persons involved in the events giving
rise to your claims. Do not cite any cases or statutes. If you intend to allege a number of related claims,
number and set forth each claim in a separate paragraph. Attach additional sheets of paper as necessary.
A.

In what institution did the events giving rise to your claim(s) occur’?

B.

Where in the institution did the events giving rise to your claim(s) occur?

What (late

D.

Facts:

W h.r

hpp’ ned
to iou’

Ret 01 2010

and approximate time did the c ems giving rise to

your clairns) occur?

__________

____________

as
tinone

else
involved?

Who else
saw what
happened?

—

III.

Injuries:

If you sustained injuries related to the events alleged above, describe them and state what medical
treatment, if any, you required and received.

IV.

Exhaustion of Administrative Remedies:

Fhe Prison Litigation Reform \ct (PLRA), 42 U SC,
1997e(a), requires that “[n]o action shall be
brought with respect to prison conditions under section 1983 of this title, or any other Federal lass, by a
prisoner confined in any jail, prison or other correctional facility until such administratise remedies as are
asailable are xhauted
\dminisrritive remedies are also knmnvn as grieance prncedures.
‘

A.

Did your claim(s) arise while you were confined in a jail, prison, or other correctional facility?
Yes

Rev ul 2010

No

3

If YES, name the jail. prison, or other correctional facility where you were confined at the time of the
events giving rise to your claim(s).

B.

Does the jail. prison or other correctional facility where your claim(s) arose have a grievance
procedure?
Yes

C.

No

Do Not Know

Does the grievance procedure at the jail, prison or other correctional facility where your claim(s)
arose cover some or all of your claim(s)?
Yes

No

Do Not Know

If YES, which claim(s)?
D.

Did you file a grievance in the jail, prison, or other correctional facility where your claim(s) arose?
Yes

No

If NO, did you file a grievance about the events described in this complaint at any other jail.
prison, or other correctional facility?
Yes
E.

No

If you did file a grievance, about the events described in this complaint, where did you file the
grievance?

1

Which claim(s) in this complaint did you grieve?

2.

What was the result, if any?

What steps. if any, did you take to appeal that decision? Describe all efforts to appeal to
3.
the highest level of the grievance process.

F.

If you did not file a grievance:
If there are any reasons why you did not file a grievance, state them here:

Rev. 01/2010

4

_______________________________________________________

If you did not file a grievance but informed any officials
informed, when and how, and their response. if an:

2.

of your

claim,

state

who

you

G.

Please set forth any additional information that is relevant to the exhaustion of your administrative
remedies.

Note:

You

may

attach

as

exhibits

to

this

complaint

any

documents

related

to

the

exhaustion

of your

administrative remedies.

V.

Relief:

State what you want the Court to do for you (including the amount of monetary compensation,
you are seeking and the basis for

RL (1] 2011)

such amount).

if any,

that

____________________________________________________________________________________
___________________________________________________
__________________________________________________
__________________________________________________
___________________________________

_________________________________________________________________________
________________________________________________________
_____
_______
______
_____
__________________
_____
______

VI.
On

Previous lawsuits:

A.

Have you filed other lawsuits in state or federal Court dealing with the same facts involved in this
action?

these
claims

Yes
B.

No

If your answer to A is YES, describe each lawsuit by answering questions 1 through 7 below. (If
there is more than one lawsuit, describe the additional lawsuits on another sheet of paper, using
the same format.)
Parties to the previous lawsuit:
Plaintiff
Defendants
2.Court (if federal court, name the district; if state court, name the county)
3.

Docket or Index number

4.

Name of Judge assigned to your case

5.

Approximate date of filing lawsuit

6.

Is the case still pending?

Yes

No

If NO, give the approximate date of disposition_____
7.

On
other
claims

C.

What was the result of the case? (For example: Was the case dismissed?
judgment in your favor? Was the case appealed’?)

Have you filed other lawsuits in state or federal court otherwise relating to your imprisonment?
Yes

D.

Was there

No

If your answer to C is YES, describe each lawsuit by answering questions I through 7 below. (If
there is more than one lawsuit, describe the additional lawsuits on another piece of paper. using
the same format.)
Parties to the pre

ions lawsuit:

lag nt i If
Dc Ic n dan ts
P

2.

Court (if federal court, name the district; if state court, name the county)

3,

Docket or Index number

4,

Name of Judge assigned to your case

5

Approximate date of

Re 01 i2() I o

filing lawsuit

6

_______________,

6.

________

Es the case still pending? Yes

No

If NO, give the approximate date of disposition
What was the result of the case? (For example: Was the case dismissed?
judgment in your favor? Was the case appealed?)

7.

Was there

I declare under penalty of perjur) that the foregoing is true and correct.
Signed this

—

day of

20_,
Signature of Plaintiff
Inmate Number
Institution Address

Note:

All plaintiffs named in the caption of the complaint must date and sign the complaint and provide
their inmate numbers and addresses.

I declare under penalty of perjury that on this

day of

,

20, 1 am delivering

this complaint to prison authorities to be mailed to the Pro Se Office of the United States District Court for
the Southern District of New York.

Signature of Plaintiff:

Ri. 01 :01()