Lopez v. Annucci et al
Filing
32
DECISION AND ORDER granting 24 Motion to Dismiss. Defendants motion [#24] to dismiss the Amended Complaint is granted and this action is dismissed with prejudice. The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any app eal from this Order would not be taken in good faith and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal in forma pauperis should be directed o n motion to the United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure. Signed by Hon. Charles J. Siragusa on 1/24/19. Copy of this NEF and Decision and Order mailed to pro se plaintiff at 184 Fulton Avenue, Rochester, NY 14613 (KAP)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________________________
ORLANDO LOPEZ,
Plaintiff,
DECISION and
ORDER
-vs14-CV-6518 CJS
WILLIAM GOODMAN, et al.,
Defendants.
__________________________________________________
INTRODUCTION
Orlando Lopez (“Lopez” or “Plaintiff”) was formerly an inmate in the custody of the
New York State Department of Corrections and Community Supervision (“DOCCS”) who
maintains that Defendants, who were employed by DOCCS and the New York Office of
Mental Health, respectively, violated his Eighth Amendment rights by acting with
deliberate indifference to his serious medical needs. Now before the Court is Defendants’
motion (Docket No. [#24]) to dismiss the Amended Complaint on the sole ground that
Plaintiff failed to exhaust his administrative remedies before commencing this action as
required by 42 U.S.C. § 1997e(a). The application is granted.
BACKGROUND
For purposes of this Decision and Order, the following facts are taken from the
Amended Complaint and from other documents that have been filed in this action and in
the related action, Lopez v. N.Y.S. Office of Mental Health, 10-CV-6413 CJS.
On July 20, 2010, Plaintiff filed Lopez v. N.Y.S. Office of Mental Health, 10-CV6413 CJS, proceeding pro se.
That action alleged an 8th Amendment deliberate
indifference medical claim that is essentially identical to the claim in the instant action. In
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particular, Plaintiff alleged that between 2008 and 2009, he was given mental health
medications that resulted in physical injury (diabetes) to his body. In his Amended
Complaint in that action, when asked if he had exhausted his administrative remedies
before commencing the action, he stated: “Was pursuing the matter with the Regional
Medical Unit, as well as with the Office of Mental Health.” On February 11, 2011,
Defendants in that action filed a Rule 26 Disclosure, noting in pertinent part that DOCCS
had no record of Plaintiff filing an inmate grievance concerning the alleged maltreatment.
On April 17, 2013, Defendants in that action moved for summary judgment,1 for reasons
including that Plaintiff had not exhausted his administrative remedies before commencing
the action. On June 18, 2013, this Court granted the summary judgment motion, finding
that Plaintiff had failed to comply with 42 U.S.C. § 1997e(a).2 The Court noted, in that
regard, that Plaintiff had not shown that the inmate grievance process had been
unavailable to him. The Court dismissed the action without prejudice. Plaintiff did not
appeal the dismissal of that action.
More than a year after the dismissal, on August 12, 2014, Plaintiff filed what
purported to be an “Amended Complaint 3rd” in closed case number 10-CV-6413.3 The
proposed pleading purported to assert the same claim, namely, that in 2008-2009
defendants gave Plaintiff mental health medications that caused him to develop diabetes
and failed to monitor his condition. When asked to state whether he had grieved the
claims, Plaintiff indicated that he had filed an inmate grievance on July 3, 2013,4 but that
1
10-CV-6413 CJS, Docket No. [#37].
10-CV-6413 CJS, Docket No. [#41].
3
10-CV-6413 CJS, Docket No. [#48].
4
Inmate Grievance No. AUB-63212-13, filed July 3, 2013. See, 10-CV-6413 CJS, “Amended Complaint
3rd,”, Docket No. [#48], Exhibit A.
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it had been denied. Attached to the proposed pleading was a copy of a decision from
DOCCS’ Central Officer Review Committee (“CORC”), indicating that the portion of
Plaintiff’s grievance pertaining to the issues in this lawsuit5 had not been addressed,
because his grievance had been untimely as to those issues. See, 10-CV-6413 CJS,
Docket No. [#48], “Amended Complaint 3rd,” Exhibit A (“With respect to the grievant’s
appeal, CORC . . . advises the grievant that his 2009 allegations are untimely and will not
be addressed.”) (emphasis added).
On September 9, 2014, this Court issued a Decision and Order, indicating that
rather than re-opening case number 10-CV-6413 CJS, it would treat the “Amended
Complaint 3rd” as a complaint in a new action, which became the subject action. The
same day, the Court opened the instant action, 14-CV-6518 CJS. To summarize matters
to this point, on September 9, 2014, Plaintiff commenced this action, alleging identical
claims to those that had previously been dismissed for failure to comply with 42 U.S.C. §
1997e(a). The only difference was that now, Plaintiff indicated that he had attempted to
exhaust administrative remedies using the Inmate Grievance Procedure, but that DOCCS
had refused to consider the grievance because it was untimely, having been filed
approximately four years after the incidents about which he was attempting to grieve.6
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CORC’s decision indicates that the grievance that Plaintiff filed, on July 3, 2013, had included many
matters relating to his medical health in addition to those that had been raised in action 10-CV-6413.
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Although not relevant to the issues raised in this Decision and Order, the Court notes that on December
3, 2015, it dismissed this action on statute of limitations grounds (sua sponte, after giving Plaintiff an
opportunity to address the issue). See, Docket No. [#9]. However, the United States Court of Appeals for
the Second Circuit reversed this Court’s ruling as to the timeliness of this action, finding that this Court
had failed to consider whether Plaintiff had “alleged ongoing misconduct under the continuing violation
doctrine.” See, Docket No. [#16], Summary Order and Mandate, 2d Cir. Case No. 16-54. To be clear, the
issue involved in this Court’s dismissal and the Second Circuit’s remand was the timeliness of this action
under the relevant statute of limitations for § 1983 actions; those rulings had nothing to do with the
timeliness of Plaintiff’s underlying inmate grievance or CORC’s decision to deny the grievance as
untimely.
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On September 12, 2017, Defendants filed the subject motion [#24] to dismiss the
Amended Complaint [#20]7 pursuant to Fed. R. Civ. P. 12(b)(6). The sole basis for the
motion is that Plaintiff failed to comply with 42 U.S.C. § 1997e(a).
In that regard,
Defendants note that it is law-of-the-case that the relevant administrative remedy, i.e., the
Inmate Grievance Program, was “available” to Plaintiff, and that it is undisputed that when
Plaintiff finally filed a grievance several years after the fact, CORC found that the
grievance8 was procedurally barred as untimely. Defendants therefore contend that this
action is barred by 42 U.S.C. § 1997e(a) since Plaintiff failed to properly exhaust his
administrative remedies.
On December 7, 2017, the Court issued a Motion Scheduling Order [#29] directing
Plaintiff to file any response by January 10, 2018. Plaintiff did not file a response.
Although, the Court doubts whether a response from him would have changed the
outcome here given the legal nature of the issue. In any event, the Court has carefully
reviewed the record and liberally construed Plaintiff’s papers to raise the strongest
arguments that they suggest.9
ANALYSIS
Rule 12(b)(6)
The legal standards to be applied on a motion to dismiss pursuant to Rule 12(b)(6)
are clear:
To survive a motion to dismiss, a complaint must plead Aenough facts to state a
7
On August 10, 2017, Plaintiff filed an Amended Complaint [#20], purporting to assert claims against
additional defendants involving the same events of 2008-2009 as previously discussed.
8
The portion of the grievance dealing with the matters at issue in this action, dating from 2009.
9
Plaintiff is proceeding pro se, and the Court has therefore reviewed his papers “with special solicitude,
mindful that they must be construed liberally and interpreted to raise the strongest arguments that they
suggest.” Cicio v. Wenderlich, 714 F. App'x 96, 97 (2d Cir. Mar. 16, 2018) (citation and internal quotation
marks omitted).
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claim to relief that is plausible on its face.@ Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible
Awhen 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. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
Progressive Credit Union v. City of New York, 889 F.3d 40, 48 (2d Cir. May 1, 2018).
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
Aintegral@ to the complaint and relied upon in it, and facts of which judicial
notice may properly be taken under Rule 201 of the Federal Rules of
Evidence.
Heckman v. Town of Hempstead, 568 F. App’x 41, 43 (2d Cir. Jun. 3, 2014) (citations and
internal quotation marks omitted).
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations, a plaintiff's obligation to provide the
grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action
will not do. Factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964B65, 167 L.Ed.2d 929
(2007); see also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d
Cir.2007) (ATo survive dismissal, 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.= @) (quoting Bell Atl. Corp. v. Twombly ) (footnote omitted).
Section 1983
Plaintiff is suing pursuant to 42 U.S.C. § 1983, and the legal principles generally
applicable to such claims are well settled:
In order to establish individual liability under § 1983, a plaintiff must show (a) that
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the defendant is a “person” acting “under the color of state law,” and (b) that the
defendant caused the plaintiff to be deprived of a federal right.
Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir.2004)
(citation omitted).
Exhaustion of Administrative Remedies
A prison inmate is required to exhaust his administrative remedies before bringing
an action in federal court complaining about prison conditions. See, 42 U.S.C.A. §
1997e(a) (“No 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.”).
For purposes of 42 U.S.C. § 1997e(a), New York inmates in the custody of DOCCS
are required to pursue their administrative grievances using New York’s Inmate
Grievance Program:
As an inmate of the New York State Department of Corrections and Community
Supervision (“DOCCS”), Plaintiff was required to submit his grievances through
the New York DOCCS' Inmate Grievance Program (“IGP”). The IGP has a threetiered process for adjudicating complaints: “(1) the prisoner files a grievance with
the Inmate 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 Central
Office Review Committee (‘CORC’).” Espinal v. Goord, 558 F.3d 119, 125 (2d
Cir.2009) (citing 7 N.Y. Comp.Codes R. & Regs. § 701.7 (1999)).
Dabney v. Pegano, 604 F. App'x 1, 3 (2d Cir. Feb. 1, 2015). However, despite this general
requirement,
[p]risoners are exempt from the exhaustion requirement when administrative
remedies are unavailable. An administrative procedure is unavailable when (1) it
operates as a simple dead end—with officers unable or consistently unwilling to
provide any relief to aggrieved inmates; (2) it is so opaque that it becomes,
practically speaking, incapable of use; or (3) prison administrators thwart inmates
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from taking advantage of a grievance
misrepresentation, or intimidation.
process
through
machination,
Amaker v. Bradt, 745 F. App'x 412 (2d Cir. Dec. 19, 2018) (citations and internal quotation
marks omitted).
If administrative remedies were “available” to the inmate plaintiff, then he must
have “properly” exhausted his remedies:
Proper exhaustion demands compliance with a prison grievance system's
deadlines and other critical procedural rules because no adjudicative system can
function effectively without imposing some orderly structure on the course of its
proceedings.
Williams v. Correction Officer Priatno, 829 F.3d 118, 122 (2d Cir. 2016) (quoting
Woodford v. Ngo, 548 U.S. 81, 90-91, 126 S.Ct. 2378 (2006), internal quotation marks
omitted).
Of particular relevance to the instant action and Defendants’ motion to dismiss, the
necessity of “proper exhaustion” means that “[a]n untimely or otherwise procedurally
defective administrative grievance . . . does not constitute proper exhaustion.” Snyder v.
Whittier, 428 F. App'x 89, 91 (2d Cir. Jul. 1, 2011) (citing Woodford v. Ngo; emphasis
added).
The exhaustion requirement contained in 42 U.S.C. 1997e(a) is an affirmative
defense, not a pleading requirement, and therefore a motion to dismiss for failure to
exhaust may only be granted if it is clear from the face of the complaint that the plaintiff
failed to exhaust:
Failure to exhaust administrative remedies is an affirmative defense under the
PLRA, not a pleading requirement. Accordingly, inmates are not required to
specially plead or demonstrate exhaustion in their complaints. However, a district
court still may dismiss a complaint for failure to exhaust administrative remedies if
it is clear on the face of the complaint that the plaintiff did not satisfy the PLRA
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exhaustion requirement.
Williams v. Correction Officer Priatno, 829 F.3d at 122 (citations and internal quotation
marks omitted). In this regard, “the face of the complaint” includes the usual information
that a court may consider on a Rule 12(b)(6) motion, including “matters of which the court
may take judicial notice,” Sewell v. Bernardin, 795 F.3d 337, 339 (2d Cir. 2015),
“documents incorporated into the complaint by reference, [and] documents possessed by
or known to the plaintiff upon which [he] relied in bringing the suit.” Hicks v. Adams, 692
F. App'x 647, 648 (2d Cir. Jun. 19, 2017) (citation and some internal quotation marks
omitted).
Applying the foregoing legal principles to the facts of this action, the Court agrees
with Defendants that this action must be dismissed pursuant to 42 U.S.C. § 1997e(a). At
all relevant times the Inmate Grievance Program was available to Plaintiff. Despite that,
he waited several years after the events at issue in this action to file a grievance, which
led CORC to decline to consider the grievance. Plaintiff did not comply with the Inmate
Grievance Program’s procedural rules and therefore did not properly exhaust his
available administrative remedies. See, e.g., Colon v. Annucci, --- 344 F. Supp. 3d --- ,
2018 WL 4757972 at *17 (S.D.N.Y. Sep. 28, 2018) (“Here, Plaintiff attached an exhibit to
the Complaint clearly stating that the CORC found that “his allegations of false
misbehavior reports [we]re untimely” and declined to address them. (Compl. Ex. N.) This
constitutes a failure to exhaust.”) (citing Woodford v. Ngo, 548 U.S. at 83–84 and Williams
v. Comstock, 425 F.3d 175, 177 (2d Cir. 2005)); see also, Brandon v. Royce, No. 16 CV
5552 (VB), 2017 WL 2656452, at *3 (S.D.N.Y. June 20, 2017) (“[F]iling an untimely or
otherwise procedurally defective administrative grievance or appeal does not satisfy the
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PLRA’s exhaustion requirement. In New York, the procedural rules governing grievances
provide, ‘[a]n inmate must submit a complaint to the clerk within 21 calendar days of an
alleged occurrence on an inmate grievance complaint form.’ 7 N.Y.C.R.R. 701.5(a)(1).”)
(citations and internal quotation marks omitted).
CONCLUSION
Defendants’ motion [#24] to dismiss the Amended Complaint is granted and this
action is dismissed with prejudice. The Court hereby certifies, pursuant to 28 U.S.C. §
1915(a)(3), that any appeal from this Order would not be taken in good faith and leave to
appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States,
369 U.S. 438 (1962). Further requests to proceed on appeal in forma pauperis should be
directed on motion to the United States Court of Appeals for the Second Circuit in
accordance with Rule 24 of the Federal Rules of Appellate Procedure.
SO ORDERED.
Dated: Rochester, New York
January 24, 2019
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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