Fisher v. Miller

KEVIN FISHER, Plaintiff, v. SUPERINTENDENT MILLER, et al., Defendants.

9:16-CV-1175 (GTS/ATB)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

January 11, 2017

KEVIN FISHER, Plaintiff pro se

BRIAN W. MATULA, Asst. Attorney General for Defendants

ANDREW T. BAXTER, United States Magistrate Judge

REPORT-RECOMMENDATION

This matter has been referred to me for Report and Recommendation pursuant to 28 U.S.C. § 636(b) and LOCAL RULES N.D.N.Y. 72.3(c). In this civil rights complaint, plaintiff alleges that defendants failed to properly use the metal detector to screen inmates going into the yard at Great Meadow Correctional Facility ("GMCF"), resulting in injury to plaintiff at the hands of another inmate. (Complaint ("Compl.") generally) (Dkt. No. 1). Plaintiff seeks substantial monetary relief. (Compl. ¶ 8).

Presently before the court is defendants' motion to dismiss the complaint for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. No. 10). Plaintiff has filed a response in opposition to the motion. (Dkt. No. 14). For the following reasons, this court will recommend denying the defendants' motion in part and granting it in part.

I. Facts

Plaintiff alleges that on September 29, 2015, at approximately 12:50 p.m., he was in the yard at GMCF. (Compl. ¶ 6). Plaintiff had obtained a pass to leave the yard in order to get his medication. As he was leaving the yard, he walked past a group of inmates and felt someone "punch" him in the back of his head. (Id.) Plaintiff alleges that he kept walking, and when he was inside the building, showing his pass to a sergeant, the officer asked plaintiff what happened to him. The sergeant told plaintiff to face the wall and noticed that plaintiff was bleeding. He asked plaintiff who cut him, but plaintiff stated that he did not know. (Id.) Plaintiff was taken to the medical department where it was determined that plaintiff had suffered a four inch cut on the back of his head and a one eighth inch cut on his right ear, which required a total of twelve stitches. (Id.)

The complaint contains six "Causes of Action ("COAs")," but essentially, plaintiff claims that the defendants - Superintendent Miller and Superintendent of Security Eastman - failed to see that the metal detector outside the yard was properly used, which allowed inmates to bring weapons into the yard. (Compl. ¶ 7). The COAs also contain additional facts.¹ (Id.) Plaintiff alleges that the defendants created a "foreseeable" risk, and were deliberately indifferent to that risk, because they wereaware that not all of the inmates were being screened through the metal detector prior to entering the yard, and they did nothing to stop this conduct by their subordinates. (COAs #1-3). Plaintiff's fourth COA includes the additional facts that the "evening" inmates are all made to go through the metal detector, while the morning and the noon groups are not all screened. (COA #4). Plaintiff implies that this shows that defendants are aware of the risk that inmates will carry weapons into the yard if they are not properly screened. The fifth COA repeats the allegation of defendants' deliberate indifference. (COA #5). Finally, plaintiff claims that defendants attempted to cover up their "negligence" by claiming that plaintiff was in a physical altercation with another inmate, but found him "not guilty" of fighting, and instead placed him in Protective Custody. (Compl. COA No. 6).

II. Motion to Dismiss

To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim 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)). "[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," do not suffice. Id. (citing Bell Atl. Corp., 550 U.S. at 555). Plaintiff's factual allegations must also be sufficient to give the defendant "'fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp., 550 U.S. at 555 (citation omitted).

When ruling on a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint and draw all reasonable inferences in thenon-movant's favor. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 71 (2d Cir. 1995). The court must heed its particular obligation to treat pro se pleadings with liberality. Phillips v. Girdich, 408 F.3d 124, 128 (2d Cir. 2005); Tapia Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999) (per curiam).

In deciding a motion to dismiss, the court may review documents integral to the complaint upon which the plaintiff relied in drafting his pleadings, as well as any documents attached to the complaint as exhibits and any statements or documents incorporated into the complaint by reference. Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d at 72 (the court may take into consideration documents referenced in or attached to the complaint in deciding a motion to dismiss, without converting the proceeding to one for summary judgment). Finally, the court may consider matters of which judicial notice may be taken, such as public filings and administrative decisions. See Kavowras v. New York Times, Co., 328 F.3d 50, 57 (2d Cir. 2003) (citing inter alia County Vanlines, Inc. v. Experian Info. Solutions, Inc., 205 F.R.D. 148, 154 (S.D.N.Y. 2002) (taking judicial notice of NLRB decisions)). See also Combier Kapel v. Biegelson, 242 F. App'x 714, 715 (2d Cir. 2007) (taking judicial notice of the Impartial Hearing Officer's decision as well as certain other documents in the administrative record of an IDEA case); In re Howard's Exp., Inc., 151 F. App'x 46, 48 (2d Cir. 2005) (taking judicial notice of Bankruptcy Court docket); Caro v. Fidelity Brokerage Services, LLC, No. 3:12-CV-1066, 2013 WL 3299708, at *6 (D. Conn. July 26, 2013) (taking judicial notice ofrecord in prior litigation between the same parties).

III. Exhaustion of Administrative Remedies

A. Legal Standards

The Prison Litigation Reform Act, (PLRA), 42 U.S.C. §1997e(a), requires an inmate to exhaust all available administrative remedies prior to bringing a federal civil rights action. The exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and regardless of the subject matter of the claim. See Giano v. Goord, 380 F.3d 670, 675-76 (2d Cir. 2004) (citing Porter v. Nussle, 534 U.S. 516, 532 (2002). Inmates must exhaust their administrative remedies even if they are seeking only money damages that are not available in prison administrative proceedings. Id. at 675.

The failure to exhaust is an affirmative defense that must be raised by the defendants. Jones v. Bock, 549 U.S. 199, 216 (2007); Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004). As an affirmative defense, it is the defendants' burden to establish that plaintiff failed to meet the exhaustion requirements. See, e.g., Key v. Toussaint, 660 F. Supp. 2d 518, 523 (S.D.N.Y. 2009) (citations omitted).

The Supreme Court has held that in order to properly exhaust an inmate's administrative remedies, the inmate must complete the administrative review process in accordance with the applicable state rules. Jones, 549 U.S. at 218-19 (citing Woodford v. Ngo, 548 U.S. 81 (2006)). In Woodford, the Court held that "proper" exhaustion means that the inmate must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a prerequisite to bringingsuit in federal court. 548 U.S. at 90-103.

The grievance procedure in New York is a three-tiered process. The inmate must first file a grievance with the Inmate Grievance Resolution Committee ("IGRC"). N.Y. Comp. Codes R. & Regs., tit. 7 §§ 701.5(a)(1) and (b). An adverse decision of the IGRC may be appealed to the Superintendent of the Facility. Id. § 701.5(c). Adverse decisions at the Superintendent's level may be appealed to the Central Office Review Committee ("CORC"). Id. § 701.5(d). The court also notes that the regulations governing the Inmate Grievance Program encourage the inmate to "resolve his/her complaints through the guidance and counseling unit, the program area directly affected, or other existing channels (informal or formal) prior to submitting a grievance." Id. § 701.3(a) (Inmate's Responsibility). There is also a special section for complaints of harassment. Id. § 701.8.

Until recently, the Second Circuit utilized a three-part inquiry to determine whether an inmate had properly exhausted his administrative remedies. See Brownell v. Krom, 446 F.3d 305, 311-12 (2d Cir. 2006) (citing Hemphill v. State of New York, 380 F.3d 680, 686 (2d Cir. 2004). The Hemphill inquiry asked (1) whether the administrative remedies were available to the inmate; (2) whether defendants' own actions inhibiting exhaustion estops them from raising the defense; and (3) whether "special circumstances" justify the inmate's failure to comply with the exhaustion requirement. Id.

The Supreme Court has now made clear that courts may not excuse a prisoner's failure to exhaust because of "special circumstances." Ross v. Blake, ___ U.S. ___, 136 S.Ct. 1850, 1857 (June 6, 2016). "'[M]andatory exhaustion statutes like the PLRA establish mandatory exhaustion regimes, foreclosing judicial discretion.'" Riles v. Buchanan, No. 15-3336-pr, 2016 WL 4572321, at *2 (2d Cir. Sept. 1, 2016) (quoting Ross, ___ U.S. at ___, 136 S. Ct. at 1857). Although Ross did away with the "special circumstances" exception, the other two factors in Hemphill - availability and estoppel - are still valid. The court in Ross referred to "availability" as a "textual exception" to mandatory exhaustion, and "estoppel" has become one of the three...