McGee v. McGready et al
Filing
47
OPINION & ORDER re: 29 MOTION to Dismiss the Amended Complaint. filed by A. Black, Jackson. For the foregoing reasons, Defendants' motion is GRANTED in part and DENIED in part. Plaintiff's Eighth Amendment and claims pre mised on the failure to process his grievances are dismissed. The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 29. The parties are directed to confer, complete and submit to the Court a completed case management plan (blank form attached) within thirty (30) days of the date of this opinion. (Signed by Judge Nelson Stephen Roman on 4/30/2018) Copies Mailed By Chambers. (kgo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
TONY MCGEE,
ELECTnONICALL y r;;c
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Plaintiff,
16-CV-4187 (NSR)
-againstCORRECTION OFFICER MCGREADY,
et al.,
OPINION & ORDER
Defendants.
NELSONS. ROMAN, United States District Judge:
Plaintiff, Tony McGee ("Plaintiff"), an incarcerated pro se inmate at Sing Sing
Conectional Facility, brings this action pursuant 42 U.S.C. § 1983 against Inmate Grievance
Supervisor Anthony Black ("Black"), former Conections Counselor Mary Jackson (" Jackson"),
Sergeant Murray or Murphy ("Sgt. Murray"), Sergeant Poole ("Sgt. Poole") and several other
conections officers. 1 Before this court is Defendant Black and Jackson's motion to dismiss the
amended complaint as against them based on failure to plead a plausible claim, failure to exhaust
administrative remedies, and qualified immunity. For the foregoing reasons, the motion is
GRANTED.
FACTUAL BACKGROUND
The following facts are taken from Plaintiff's Amended Complaint and are deemed true
for the purpose of this motion.
Plaintiff alleges that on or about July 22, 2013, while in the mess hall he was assaulted by
a fellow "gang related Hispanic inmate" who made a derogatory or offensive statement. In
response to the statement, Plaintiff punched the inmate in the face resulting in an altercation.
1
C
The operative complaint is the Amended Complaint filed February 2, 2017. (ECF No. 22.)
Copies~d_ :\ \':!>ol 2D18~
Chambers ofNclson S. ~oman, u.S ll I.
During the fight, Plaintiff was repeatedly punched about the face causing several lacerations.
Plaintiff alleges that a "Black Correction Officer"2 was present in the mess hall, observed the
incident, and failed to prevent it and/or failed to intervene.
On or about July 11, 2013, approximately eleven days prior to the altercation, Plaintiff
spoke to Jackson and requested that he be placed in protective custody because he was
threatened and being targeted by "gang-related Hispanic inmates." Jackson purportedly prepared
a request for "voluntary protective custody," and informed Plaintiff he would be contacted
sometime later. Later that day, Plaintiff was interviewed by Sgt. Murray concerning his request
for protective custody. Plaintiff purportedly informed Sgt. Murray of the threats and being
targeted. Plaintiff was once again informed he would be contacted sometime later. Plaintiff's
request was not granted. Plaintiff suggests had he been placed in protective custody, as requested,
he would not have been assaulted and injured. Additionally, Plaintiff asserts that Defendant
Black failed to process multiple sick-call grievances by failing to forward them to Central Office
Review Committee ("CORC"). Plaintiff asse1ts claims under the Eight and Fourteenth
Amendments.
STANDARD OF REVIEW
Rule 12(b)(6)
On a 12(b)(6) motion, dismissal is proper unless the complaint "contain[s] sufficient factual
matter, accepted as trne, to 'state a claim to relief that is plausible on its face."' Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When
there ai·e well-pied factual allegations in the complaint, "a court should assume their veracity and
then determine whether they plausibly give rise to an entitlement to relief." Id at 679. The
2
In his complaint, Plaintiff appears to identify the "Black Correction Officer" as C.O. Javier Caban.
2
critical inquiry is whether the plaintiff has pied sufficient facts to nudge the claims "across the
line from conceivable to plausible." Twombly, 550 U.S. at 555. A motion to dismiss will be
denied where the allegations "allow[] the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.
Where a pro se Plaintiff is concerned, Courts must construe the pleadings in a particularly
liberal fashion. Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). The Comt must therefore
interpret the pleading "to raise the strongest arguments that [it] suggest[s]." Harris v. City of
NY., 607 F.3d 18, 24 (2d Cir. 2010) (internal quotations and citation omitted). Nevertheless, a
pro se plaintiff's pleading must contain factual allegations that sufficiently "raise a right to relief
above the speculative level" (Jackson v. N Y.S. Dept ofLabor, 709 F. Supp. 2d 218, 224
(S.D.N.Y 2010)), and the Court's duty to construe the complaint liberally is not "the equivalent
of a duty to re-write it." Geldzahler v. New York Medical College, 663 F. Supp. 2d 379, 387
(S.D.N.Y 2009).
Exhaustion
The Prison Litigation Reform Act ("PLRA") precludes the filing of an action "with respect to
prison conditions under [42 US.C. § 1983) ... by a prisoner confined in any jail, prison or other
conection facility until such administrative remedies as are available are exhausted." Williams v.
Corr. Officer Priatno, 829 F.3d 118, 122 (2d Cir. 2016) (internal quotations omitted). Whether
an inmate has exhausted all administrative remedies turns on a review of "the state prison
procedures [available] and the prisoner's grievance .... " See Espinal v. Goard, 558 F.3d 119,
124 (2d Cir. 2009) citing Jones v. Bock, 549 U.S. 199, 218 (2007). Grievances at DOCCS are
governed by the Inmate Grievance Program ("IGP"), which is based on a three-tiered system. Id.
at 125. To adjudicate an inmate complaint: "(I) the prisoner files a grievance with the Inmate
3
Grievance Resolution Committee ("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 CORC. Id.; see also N.Y. Comp. Codes. R. & Regs., tit. 7,
§ 701.7 (1999).
Notably, exhaustion is an affirmative defense, not a pleading requirement; thus, inmate
plaintiffs need not "specially plead or demonstrate exhaustion in their complaints." Jones, 549
U.S. at 216. Instead, Defendants must demonstrate lack of exhaustion. Colon v. N YS. Dept of
Corr. & Cmty. Supervision, No. 15-CV-7432(NSR), 2017 WL 4157372, at *5 (S.D.N.Y Sept. 15,
2017) citing Key v. Toussaint, 660 F. Supp. 2d 518, 523 (S.D.N.Y. 2009).
Dismissal on a 12(b)(6) motion for failure to exhaust is pennissible where "it is clear on the
face of the complaint that the plaintiff did not satisfy the PLRA exhaustion requirement."
Williams, 829 F.3d at 122; see also Parris v. NYS. Dept Corr. Servs., 947 F. Supp. 2d 354,261
(S.D.N.Y. 2013) (citing Johnson v. Westchester Cnty. Dept of Con: Med Dept, No. 10-CV6309, 2011 WL 2946168, at *2 (S.D.N.Y. July 19, 2011) for proposition that denial of motion
was appropriate where complaint was ambiguous as to exhaustion). Further, on such a motion,
where a comt is confined to the four corners of the complaint, the documents attached thereto,
and things of which it is entitled to take judicial notice (see, e.g., Kleinman v. Elan Co,p., 706
F.3d 145, 152 (2d Cir. 2013); Gonzalez v. Hasty, 651 F.3d 318, 321 (2d Cir. 2011)), a court is
only pe1mitted to consider outside documents related to exhaustion and submitted by defendants
under limited circumstances. See, Smith v. Miller, No. 15-CV-9561 (NSR), 2017 WL 4838322, at
*5 (S.D.N.Y. Oct. 23, 2017) (noting comts can take judicial notice of administrative records in
Section 1983 cases in limited circumstances). Those include instances where "the complaint a)
was the standard pro se form complaint that has a check-box regarding exhaustion, b) contained
4
allegations clearly stating that the inmate had exhausted his administrative remedies, or c) clearly
pointed to the fact that the inmate had, in fact, not exhausted." Colon, 2017 WL 4157372, at *5.
Qualified Immunity
"Qualified immunity shields federal and state officials from money damages unless a
plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and
(2) that the right was 'clearly established' at the time of the challenged conduct." Ashcroft v. a/-
Kidd, 563 U.S. 731, 735 (2011) citin~Harlow v. Fitzgerald, 457 U.S. 800,818 (1982). "If the
law was clearly established, the immunity defense ordinarily should fail, since a reasonably
competent public official should know the law governing his conduct." Harlow, 457 U.S. at 81819. It is within the Court's discretion to determine the order in which the two prongs are
analyzed. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
DISCUSSION
Plaintiff asserts §1983 claims under the Eighth Amendment against Defendants Black
and Johnson. The essence of Plaintiff's claim is a failure to protect. Plaintiff's complaint suggest
that Defendants' failure in processing or approving his request for voluntary confinement
resulted in his subsequent assault. Or, construing the allegations liberally as the Court is required
to do, but for Defendants' failure in placing him in voluntary protective custody, Plaintiff would
not have been attacked and injured by a fellow inmate.
Plaintiff's 1983 complaint is that he was subjected to cruel and unusual punishment in
violation of the Eighth Amendment, made applicable to the States by the Fourteenth. See Estelle
v. Gamble, 429 U.S. 97, 102 (1976) citing Robinson v. California, 370 U.S. 660 (1962). "To
prevail on an Eighth Amendment claim, an inmate must first show that his injmy is objectively a
'sufficiently serious' one." Brims v. Burdi, No. 03-CV-3159 (WHP), 2014 WL 1403281, at *2
5
(S.D.N.Y. June 23, 2004) quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998).
Additionally, a _plaintiff must "show that the defendant had knowledge of [the] prisoner's
problem and was deliberately indifferent to [the] prisoner's plight." Calhoun v. NY. State Div. of
Parole Officers, 999 F.2d 647,654 (2d Cir. 1993) citing Sample v. Diecks, 885 F.2d 1099, 1110
(3d Cir. 1989).
Deliberate indifference requires a showing that the conditions of incarceration posed a
substantial risk of serious harm, and that prison officials possessed sufficient culpable intent.
Hayes v. New York City Dep't Of Corr., 84 F.3d 614,620 (2d Cir.1996) citing Farmer v. Brennan,
511 U.S. 825, 834 (1994).The deliberate indifference requires a two prongs analysis: substantial
risk of serious harm, objective prong; and sufficient culpable intent, subjective prong. Farmer,
511 U.S. at 834; Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996). Here, the objective
prong is meet and not disputed.
Subjectively, the prison official acts with the requisite sufficient culpable state of mind
when he (or she) "has knowledge that an inmate faces a substantial risk of serious harm and he
disregards that risk by failing to take reasonable measures to abate the haim." Hayes, 84 F.3d at
620. Comts have denied deliberate indifference claims based upon surprise attacks. See
Fernandez v. N Y.C. Dep't of Corr., No. 08-CV-4294 (KMW), 2010 WL 1222017, at *4
(S.D.N.Y. Mar. 29, 2010); Zimmerman v. Macomber, No. 95-CV-0882(DAB), 2001 WL 946383
(S.D.N.Y. Aug. 21, 2001). Plaintiff alleges he provided advance notice to Jackson and Black of
threats and a possible attack. Plaintiff's allegation also suggest he identified the attacker(s),
"gang related Hispanic irunates" at the facility. Plaintiff's allegations suggest that Black and
Jackson failed to take reasonable measures to abate the impending attack. Thus, Plaintiff has
pied a plausible Eighth Amendment claim.
6
Plaintiff's Eighth Amendment claim, however, fails for failure to exhaust his
administrative remedies. This case involves the use of the prose form complaint which contains
the equivalent of a check-box exhaustion section. The amended complaint is clear as to whether
Plaintiff alleges he grieved his claims. Plaintiff explicitly states he filed grievances concerning,
inter alia, the "5 sick call request," the "non-protection grievances" and the "foreseeable
assault." (See Amended Comp!., Sect. IV., E (1).) Because the exhaustion issue is an integral part
of the prisoner's claims, the Comt may refer to materials outside of the complaint on a 12(b)( 6)
motion in dete1mining whether a plaintiff has exhausted. See Smart v. Goode, No. 04-CV-8850
(RWS), 2008 WL 591230, at *2 (S.D.N.Y. Mar. 3, 2008) (recognizing that the Court's previous
opinion "[did] not faithfully capture the subtlety of exhaustion doctrine in the Second Circuit"
and that the Court should have addressed non-exhaustion as an affirmative defense).
In suppo1t of their motion, Defendants submit a declaration from Karen Bellamy
("Bellamy"), the Director of the Inmate Grievance Program ("IGP"). Bellamy avers that she is
the custodian of records maintained by the CORC, which is tasked with rendering administrative
decisions on grievances filed by inmates. Based upon her review of the records, she found that
Plaintiff made other complaints concerning meals, conditions of the facility, and "problems with
security staff" on December 17, 2013. Plaintiff, however, did not file a grievance concerning the
July 22nd incident nor his request for voluntary confinement. Though Plaintiff attempts to rebut
Defendants' showing, mere conclusory statements in opposition is insufficient. Accordingly,
Plaintiff's Eighth Amendment claims must be dismissed.
Plaintiff also asse1ts a claim based on Defendant Black's failure to process his grievances,
including his "5 sick call grievances." It is well settled that in order to succeed on a§ 1983
claim, Plaintiff must show that he has been deprived of a constitutional or other federal right. 42
7
U.S.C. § 1983. Inmate grievances procedures are undertaken voluntarily by the states and are not
constitutionally required. Johnson v. New York City Dep't ofHealth, No. 06-CV-13699
(BSJ)(FM), 2008 WL 5378124, at *3 (S.D.N.Y. Dec. 22, 2008) (internal citation omitted).
Accordingly, a failure to process a prisoner's grievance(s) does not in itself give rise to a
constitutional claim. Swift v. Tweddell, 582 F. Supp. 2d 437, 445-46 (W.D.N.Y. 2008) (internal
citations omitted).This claim must therefore be dismissed.
CONCLUSION
For the foregoing reasons, Defendants' motion is GRANTED in part and DENIED in
part. Plaintiff's Eighth Amendment and claims premised on the failure to process his grievances
are dismissed. The Clerk of the Court is respectfully directed to terminate the motion at ECF No.
29. The parties are directed to confer, complete and submit to the Comt a completed case
management plan (blank fo1m attached) within thirty (30) days of the date of this opinion.
SO ORDERED.
Dated:
April 30, 2018
White Plains, New York
United States District Judge
8
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Rev. Jan. 2012
-------------------------------------------------------------x
Plaintiff(s),
CIVIL CASE DISCOVERY PLAN
AND SCHEDULING ORDER
Defendant(s).
_ _ cv ____ (NSR)
- against -
-------------------------------------------------------------x
This Civil Case Discovery Plan and Scheduling Order is adopted, after consultation with
counsel, pursuant to Fed. R. Civ. P. 16 and 26(f):
1.
All patties [consent] [do not consent] to conducting all fmther proceedings before
a Magistrate Judge, including motions and trial, pursuant to 28 U.S.C. § 636(c).
The patties are free to withhold consent without adverse substantive consequences.
(If all parties consent, the remaining paragraphs of this form need not be
completed.)
2.
This case [is] [is not] to be tried to a jmy.
3.
Jo inder of additional patties must be accomplished by
4.
Amended pleadings may be filed until _ _ _ _ _ _ _ __
5.
Interrogatories shall be served no later than _ _ _ _ _ _ _ _, and responses
thereto shall be served within thilty (30) days thereafter. The provisions of Local
Civil Rule 33.3 [shall] [shall not] apply to this case.
6.
First request for production of documents, if any, shall be served no later than
7.
Non-expert depositions shall be completed by _ _ _ _ _ _ _ _ _ _ __
a.
Unless counsel agree otherwise or the Comt so orders, depositions shall not
be held until all patties have responded to any first requests for production
of documents.
b.
Depositions shall proceed concurrently.
c.
Whenever possible, unless counsel agree othe1wise or the Comt so orders,
non-party depositions shall follow party depositions.
8.
Any further interrogatories, including expe1t interrogatories, shall be served no
later than - - - - - - - - - - -
9.
Requests to Admit, if any, shall be served no later than
10.
Expert reports shall be served no later than _ _ _ _ _ _ _ _ __
11.
Rebuttal expert rep01ts shall be served no later than _ _ _ _ _ _ _ _ __
12.
Expe,t depositions shall be completed by _ _ _ _ _ _ _ _ _ _,
13.
Additional provisions agreed upon by counsel are attached hereto and made a part
hereof.
14.
ALL DISCOVERY SHALL BE COMPLETED BY
15.
Any motions shall be filed in accordance with the Comt's Individual Practices.
16.
This Civil Case Discove1y Plan and Scheduling Order may not be changed without
leave of Comt (or the assigned Magistrate Judge acting under a specific order of
reference).
17.
The Magistrate Judge assigned to this case is the Hon. _ _ _ _ _ _ _ _ __
18.
If, after enlly of this Order, the paities consent to trial before a Magistrate Judge,
the Magistrate Judge will schedule a date ce1tain for trial and will, if necessary,
amend this Order consistent therewith.
19.
The next case management conference is scheduled for _ _ _ _ _ _ _ _ __
at ______. (The Comt will set this date at the initial conference.)
SO ORDERED.
Dated: White Plains, New York
Nelson S. Roman, U.S. District Judge
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