Clay v. Wall et al

Filing 25

MEMORANDUM AND ORDER denying 7 Motion to Dismiss for Failure to State a Claim. So Ordered by Chief Judge William E. Smith on 9/28/2018. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
______________________________
)
ANDREW BRIAN CLAY,
)
Plaintiff,
)
)
v.
)
)
A. T. WALL, et al.,
)
Defendants.
)
______________________________)

C.A. No. 17-506-WES

MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Pending before the Court is Defendants’ Motion to Dismiss
(ECF No. 7) Plaintiff’s Complaint (ECF No. 1).
Brian

Clay

(“Plaintiff”

or

“Clay”),

a

Plaintiff Andrew

prisoner

at

the

Adult

Correctional Institutions (“ACI”), has brought a pro se civil
rights action pursuant to 42 U.S.C. § 1983 against Defendants A.
T. Wall, Lieutenant Caverhali, Correctional Officer Mitchelle, and
Correctional Officer Rugs (collectively “Defendants”), 1 all of whom
are sued in their individual and official capacities.

Defendants

seek dismissal of the Complaint pursuant to Fed. R. Civ. P.
12(b)(6) because it fails to state a claim upon which relief may
be granted due to Clay’s failure to exhaust his administrative

1

In the Motion
Defendants’ names are
“Rugg.”

to Dismiss, the correct spellings of
listed as “Carnevale,” “Mitchell,” and

remedies at the ACI.

For the reasons that follow, the Motion to

Dismiss is DENIED.
BACKGROUND
Clay is an inmate at the ACI in Cranston, Rhode Island.
Defendants

are

officials

of

the

Rhode

Island

Corrections (“RIDOC”) and/or officers at the ACI.

Department

of

In a “Statement

of Claim” (ECF No. 1-1) attached to his Complaint, Clay alleges
that on or about February 25, 2017, correctional officers (“COs”)
at the ACI used excessive force in the process of “cuffing up”
Clay.

(Statement of Claim 1.)

Clay was injured as a result and

was transported to Rhode Island Hospital, where a CT scan was
performed and he received a total of seventeen stitches.
He also lost a tooth.

(Id.)

(Id.)

Clay attempted to pursue his

allegations regarding this incident through the RIDOC Grievance
Procedure, but, he states, his attempts to do so were met with
opposition from ACI personnel.
Clay

filed

the

instant

(Compl. 8-9, ECF No. 1.)
Complaint

on

October

11,

2017. 2

Defendants’ Motion to Dismiss and memorandum in support thereof
(“Defendants’ Mem.”) were filed on December 19, 2017.

Thereafter,

Clay filed a response in opposition (“Response,” ECF No. 14), and

2

The Complaint is dated October 11, 2017, and is deemed filed
on that date.
See Houston v. Lack, 487 U.S. 266, 276
(1988)(concluding that pleadings are deemed filed on date prisoner
relinquishes control over documents).
2

Defendants filed a Reply Memorandum (“Defendants’ Reply,” ECF No.
17) in support of their Motion to Dismiss.
LAW
I.

12(b)(6) Standard
Under Rule 12(b)(6), the Court must construe the complaint in

the light most favorable to the plaintiff, see Negron-Gaztambide
v. Hernandez-Torres, 35 F.3d 25, 27 (1st Cir. 1994), taking all
well-pleaded allegations as true and giving the plaintiff the
benefit of all reasonable inferences, see Arruda v. Sears, Roebuck
& Co., 310 F.3d 13, 18 (1st Cir. 2002); Carreiro v. Rhodes Gill &
Co., 68 F.3d 1443, 1446 (1st Cir. 1995).

“[I]f, under any theory,

the allegations are sufficient to state a cause of action in
accordance with the law,” the motion to dismiss must be denied.
Vartanian v. Monsanto Co., 14 F.3d 697, 700 (1st Cir. 1994).
While a plaintiff need not plead factual allegations in great
detail, the allegations must be sufficiently precise to raise a
right to relief beyond mere speculation.

See Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 561-63 (2007) (abrogating the “no set of
facts” rule of Conley v. Gibson, 355 U.S. 41, 44-45 (1957)).

“The

complaint must allege ‘a plausible entitlement to relief’ in order
to survive a motion to dismiss.”

Thomas v. Rhode Island, 542 F.3d

944, 948 (1st Cir. 2008) (quoting Twombly, 550 U.S. at 559); see
also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“When there are
well-pleaded factual allegations, a court should assume their
3

veracity and then determine whether they plausibly give rise to an
entitlement to relief.”).

The Court of Appeals has cautioned that

the “plausibility” requirement is not akin to a “standard of likely
success on the merits,” but, instead, “the standard is plausibility
assuming the pleaded facts to be true and read in a plaintiff’s
favor.”

Sepúlveda-Villarini v. Dep’t of Educ. of P.R., 628 F.3d

25, 30 (1st Cir. 2010).
In considering a motion to dismiss a prisoner’s claim that
his constitutional rights have been violated, the court must be
guided by the principle that, while “prison officials are to be
accorded substantial deference in the way they run their prisons,
this does not mean that we will rubber stamp or mechanically accept
the judgments of prison administrators.” Spratt v. R.I. Dep’t of
Corr., 482 F.3d 33, 40 (1st Cir. 2007) (citation and internal
quotation marks omitted). In addition, this Court has liberally
reviewed Plaintiff’s allegations and legal claims since they have
been put forth by a pro se litigant.

See Haines v. Kerner, 404

U.S. 519, 520-21 (1972).
II.

Exhaustion of Administrative Remedies
The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e,

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
4

available are exhausted.”
requires

an

processes

inmate

before

to

filing

42 U.S.C. § 1997e(a).
exhaust
a

all

federal

available
lawsuit

“Section 1997e
administrative

relating

to

the

conditions of his or her confinement, even if some or all of the
relief the inmate seeks is not available through the administrative
process.”

Young v. Wall, No. Civ.A. 03-220S, 2006 WL 858085, at

*2 (D.R.I. Feb. 27, 2006)(citing Booth v. Churner, 532 U.S. 731,
734 (2001)).

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.”
516, 532 (2002).
Supreme
remedies

Court

Porter v. Nussle, 534 U.S.

In Woodford v. Ngo, 548 U.S. 81 (2006), the

held

prisoners

that
must

“to

properly

‘complete

the

exhaust

administrative

administrative

review

process in accordance with the applicable procedural rules’-rules
that are defined not by the PLRA, but by the prison grievance
process itself.”

Jones v. Bock, 549 U.S. 199, 218 (2007)(quoting

Ngo, 548 U.S. at 88) (internal citation omitted); see also id.
(“[I]t is the prison’s requirements, and not the PLRA, that define
the

boundaries

administrative

of

proper

remedies

is

exhaustion.”).
an

affirmative

“Non-exhaustion
defense,

and

of
the

defendants bear the ultimate burden of pleading and proving nonexhaustion.”

Maraglia v. Maloney, Civil Action No. 2001-12144-

RBC, 2006 WL 3741927, at *1 (D. Mass. Dec. 18, 2006)(citing
5

Casanova v. Dubois, 304 F.3d 75, 77 n.3 (1st Cir. 2002)); see also
Jones, 549 U.S. at 216 (concluding that failure to exhaust is an
affirmative defense under the PLRA).
DISCUSSION
Defendants

assert

that

“there

are

no

genuine

issues

of

material fact and that the Complaint in this civil action filed by
the Plaintiff, Andrew Brian Clay . . . , should be dismissed as a
matter

of

law

for

his

failure

to

exhaust

his

remedies under the RIDOC Grievance Procedure.”
1,

ECF

No.

7.)

Clay

concedes

that

he

did

administrative

(Defendants’ Mem.
not

exhaust

his

administrative remedies pursuant to the RIDOC Grievance Procedure.
(Compl. 8 (“The grievance process was never completed . . . .”);
Response 1.) 3
The RIDOC grievance policy “provides an avenue for inmates to
challenge, inter alia, the interpretation and application of the
RIDOC’s

policies,

rules,

and

procedures,

individual

employee

actions, property loss or damage, and any other matter relating to
privileges,

programs,

and/or

services,

conditions

supervision, and living facility conditions.”

of

care

or

Young, 2006 WL

858085, at *1.
The grievance policy provides for a three tier review.
First, an inmate must seek resolution at the lowest chain
3

Clay initially states that “[n]o grievance has ever been
filed regarding these allegations” (Compl. 8), but then says that
he “did file 1 greavece [sic] . . . ” (Response 1), which was
denied (id.).
6

of command. Second, if the issue is not resolved, the
inmate may submit a grievance to the warden of the
facility where the inmate resides. Finally, if the issue
is
not
adequately
addressed
to
the
inmate’s
satisfaction, the inmate may appeal to the director of
the RIDOC . . . .
Id. (internal citations omitted); see also Cable v. Wall, C.A. No.
09-439 ML, 2011 WL 1211600, at *2 (D.R.I. Mar. 8, 2011); (Mot. to
Dismiss, Ex. 2, ECF No. 7-2).
Again, there is no dispute that Clay did not exhaust his
administrative remedies pursuant to the ACI’s grievance procedure. 4
However, Clay states that “all grivance’s [sic] in this matter
were met with extreme prejudice and shreaded [sic] in my face by
the Officer[]s.
Officers.”

By being ripped up and torn in my face by the

Compl. 8; see also id. at 9 (“Every measure to shed

some light on this incident has resulted in any and all documents
being returned to me by the opposing parties.”).

Clay further

alleges that “[a] process of continued intimidation and threats
are being carried out in order to circumvent the process.”
at 9.)

(Id.

Defendants do not address these allegations in their reply

4

It is unnecessary for the Court to consider the Affidavit
of Cory Cloud (ECF No. 7-1), the DOC grievance coordinator, at
this juncture since there is no dispute that Clay did not complete
the administrative process; therefore, the Court need not convert
Defendants’ Motion to Dismiss into a motion for summary judgment.
See Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6)
or 12(c), matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one for
summary judgment under Rule 56.
All parties must be given a
reasonable opportunity to present all the material that is
pertinent to the motion.”).
7

memorandum, but simply restate their argument that Clay “did not
exhaust the RIDOC grievance process prior to filing the instant
action.”

(Defendants’ Reply 1, ECF No. 17; see also id. at 2.)

Clay’s allegations raise the question of what administrative
remedies were truly “available” to him.

See 42 U.S.C. § 1997e(a).

“To be ‘available,’ a remedy must be ‘capable of use for the
accomplishment of a purpose.’”

Tuckel v. Grover, 660 F.3d 1249,

1252 (10th Cir. 2011)(quoting Booth, 532 U.S. at 737).

Courts

within the First Circuit have suggested that “[e]ven post-Ngo, the
‘availability’
inquiry.”

of

grievance

procedures

remains

a

relevant

Maraglia, 2006 WL 3741927, at *2 (citing Kaba v. Stepp,

458 F.3d 678, 685 (7th Cir. 2006)); see also Parker v. Robinson,
Civil No. 04-214-B-W, 2006 WL 2904780, at *8 (D. Me. Oct. 10,
2006)(“I believe that

. . . the majority opinion [in Ngo] leaves

the door open for Courts to consider the particular circumstances
of the case in front of them when resolving a 42 U.S.C 1997e(a)
dispute.

Certainly

Justice

Breyer

thought

so

in

his

Ngo

concurrence.” 5); id. at 11 (“[I]f under Ngo it is permissible to

5

In his concurring opinion in Ngo, after noting that there
were “well-known exceptions to exhaustion” in administrative and
habeas corpus law, Justice Breyer wrote:
At least two Circuits that have interpreted the statute
in a manner similar to that which the Court today adopts
have concluded that the PLRA’s proper exhaustion
requirement is not absolute. See Spruill v. Gillis, 372
F.3d 218, 232 (3d Cir. 2004); Giano v. Goord, 380 F.3d
670, 677 (2d 2004). In my view, on remand, the lower
8

estop defendants from asserting non-exhaustion as an affirmative
defense based on the correctional institution’s handling of a
particular grievance, I believe that the doctrine of equitable
estoppel could be applied to Parker’s case.”).

More specifically,

courts have stated:
Of course, Perfetto cannot be held accountable for any
failure-to-exhaust if prison officials have rendered his
administrative remedies unavailable to him. The PLRA is
clear that proper exhaustion of administrative remedies
is only of those remedies as are available. The test
for determining whether administrative remedies are
available is objective and asks whether a similarly
situated individual of ordinary firmness [would] have
deemed them available.
Perfetto v. New Hampshire State Prison, Warden, Civil No. 06-307JL, 2008 WL 943372, at *6 (D.N.H. Apr. 8, 2008)(alteration in
original)(internal citations and quotation marks omitted); see
also Robinson v. Gordon, Civil No. 09-cv-083-SM, 2010 WL 1794701,
at *3 (D.N.H. May 5, 2010)(“There may well be circumstances under
which prison officials might be said to have denied an inmate
access to the administrative process by, for example, making a
concerted and coordinated effort to refuse him access to required
forms or by threatening physical violence should he pursue a
grievance.”)(citing Hemphill v. New York, 380 F.3d 680, 686-88 (2d

court should similarly consider any challenges that
respondent may have concerning whether his case falls
into a traditional exception that the statute implicitly
incorporates.
548 U.S. at 104 (Breyer, J., concurring).
9

Cir. 2004); Gibson v. Weber, 431 F.3d 339, 341 (8th Cir. 2005));
Navarro v. Wall, No. C.A. 08-12ML, 2008 WL 4890756, at *3 (D.R.I.
Nov. 12, 2008)(noting Parker and Perfetto decisions); cf. Cable,
2011 WL 1211600, at *3 (“Plaintiff does not state that a prison
official prevented him from filing a grievance form.”).
In Perfetto, the court found that “[o]ther than Perfetto’s
bare assertions, there is nothing in the record to suggest that he
was denied access to the [grievance] forms or dissuaded to a degree
that effectively made administrative remedies unavailable to him.”
2008 WL 943372, at *6.

But Perfetto was a summary judgment case.

Here, the Court is faced with a Rule 12(b)(6) motion to dismiss,
at which point the Court accepts as true the factual allegations
in the Complaint and draws all reasonable inferences in favor of
Plaintiff. 6

See Cook v. Gates, 528 F.3d 42, 48 (1st Cir. 2008).

6

To be clear, simply returning a grievance form as “denied”
(Response 1), obviously does not render administrative remedies
unavailable.
Nor does denying a request to go outside the
prescribed process for valid institutional reasons. (Compl. 3,
Attachment, ECF No. 1-1). If, in fact, Clay chose not to proceed
through proper channels, see, e.g., Robinson, 2010 WL 1794701, at
*3 (finding that plaintiff had failed to exhaust administrative
remedies because after one attempt to obtain grievance form
“[p]laintiff was content to let the matter drop . . .”), or
misunderstood the process, see Cable, 2011 WL 1211600, at *3
(finding that plaintiff’s unfamiliarity with the grievance policy
did not justify his failure to comply with procedures and properly
exhaust his administrative remedies), he has failed to exhaust his
administrative remedies.
However, the Court takes seriously
Clay’s allegations that his forms were torn up and that he was
threatened and intimidated in order to “circumvent the process”
and prevent him from properly exhausting his administrative
remedies. (Compl. 8-9.)
10

Based on the present record, the Court cannot conclusively
find

that

Clay

failed

to

exhaust

“available”

administrative

remedies.

See, e.g., Casanova, 304 F.3d at 77 (after remanding

case

further

for

fact-finding

regarding

whether

exhaustion

requirement had been met, holding that “PLRA does not mandate
dismissal for failure to exhaust, at least not at this prefatory
stage of litigation”); Maraglia, 2006 WL 3741927, at *6 (finding
that “a dispute of fact remains on whether the internal appellate
process was indeed ‘available’ to Maraglia, and that the record
requires further development on this point”).

Accordingly, the

Motion to Dismiss is DENIED. 7
CONCLUSION
Based on the foregoing, Defendants’ Motion to Dismiss (ECF
No. 7) is DENIED.
IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: September 28, 2018

7

As was the case in Casanova, “[n]othing in this opinion,
however,
is
intended
to
preclude
the
[Defendants]
from
appropriately presenting this affirmative defense in any further
proceedings.” 304 F.3d at 78.
11