Adams v. George

Filing 25

OPINION & ORDER re: 21 FIRST MOTION to Dismiss Plaintiff's Complaint filed by M. George. Based on the foregoing reasons, Defendant's motion to dismiss pursuant to Rule 12(b)(6), and alternatively pursuant to Rule 56 , is GRANTED without opposition. The Clerk of the Court is directed to terminate the motion at ECF No. 21 and to terminate the action. Defendant is directed to serve a copy of this Opinion and Order upon Plaintiff, and to show proof of service on the docket. (Signed by Judge Nelson Stephen Roman on 9/8/2020) (mro) Transmission to Orders and Judgments Clerk for processing.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ANNA ADAMS,
Plaintiff,
-againstC.O. M. GEORGE, an employee of the N.Y.S. Dept.
of Corrections and Community Supervision, in his
individual capacity,

18-cv-2630 (NSR)
OPINION & ORDER

Defendant.

NELSON S. ROMAN, United States District Judge:
Plaintiff Anna Adams ("Plaintiff'), proceeding pro se, commenced this action on March 22,
2018, asserting claims pursuant to 42 U.S.C. § 1983 ("Section 1983"), against Defendant Correctional
Officer M. George ("Defendant"). She seeks compensatory and punitive damages for alleged violations
of her constitutional rights while confined at the Bedford Hills Correctional Facility ("Bedford Hills").
(See Complaint ("Compl."), ECF No. 2). Before this Court is Defendant's Motion to Dismiss for failure

to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)"), or alternatively,
for summary judgment pursuant to Federal Rule of Civil Procedure 56 ("Rule 56"). 1 (See Defendant's
Motion to Dismiss ("Def s Mot. Dismiss"), ECF No. 21.) For the following reasons, Defendant's
motion is GRANTED without opposition.

BACKGROUND
FACTS ALLEGED
The below facts are taken from Plaintiffs pleadings and matters of which the Court may

Attached to Defendant's motion to dismiss is a notice pursuant to Local Civil Rule 12.1, which indicates to the
litigant, Plaintiff, that the Court may treat the motion as one for summary judgement under Rule 56. (Defs Mot.
Dismiss, ECF No. 21, Attach. 2)

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to her grievance against the Defendant concerning the Chapel Incident and his alleged failure to allow
prayer service. Having done so, Plaintiff has placed the exhaustion issue squarely before the Court.
It is well settled that exhaustion is mandatory under the PLRA and the failure to do so is an

affirmative defense. Jones v. Bock, 549 U.S. at 200. In support of his motion, Defendant submits a
declaration from Rachel Seguin, the Assistant Director of the Inmate Grievance Program (IGP), stating
that the grievance(s) at issue in this action have not been fully exhausted. (Mem. Law Supp. Defs Mot.
Dismiss, ECF No. 22, Attach. 1). Attached to the declaration is a printout from CORC which shows "the
grievances referenced in Plaintiffs complaint ... have not been appealed to CORC, as demonstrated by
their absence from the computer printout." (Id. at 2, para. 8.) Defendant has therefore demonstrated that
Plaintiff has failed to exhaust her administrative remedies, warranting dismissal under Rule 12(b)(6).
Similarly, under a Rule 56 analysis, Defendant has demonstrated that no genuine dispute exists as to a
material fact, namely that the affirmative defense of failure to exhaust available administrative remedies
has been asserted, and that the proffered evidence demonstrates that Plaintiff has failed avail herself of
such remedies. There being no material issues of fact, Defendant is entitled to summary judgment
warranting dismissal of the complaint.
CONCLUSION

Based on the foregoing reasons, Defendant's motion to dismiss pursuant to Rule 12(b)(6), and
alternatively pursuant to Rule 56, is GRANTED without opposition. The Clerk of the Court is directed
to terminate the motion at ECF No. 21 and to terminate the action. Defendant is directed to serve a
copy of this Opinion and Order upon Plaintiff, and to show proof of service on the docket.

Dated:

September 8, 2020
White Plains, New York

SO ORDERED:

s.

NELSON ROMAN
United States District Judge
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