Lev v. Thoms

EDWARD LEV, Plaintiff, v. MATTHEW THOMS, in his individual and official capacities as Superintendent ofFive Points Correctional Facility; ANTHONY J. ANNUCCI,in his individual and official capacities as Acting Commissioner of the New York Department ofCorrections and Community Supervision; JOHN DOE 1,in his individual and official capacities as Deputy Commissioner of the New York Department ofCorrections and Community Supervision; and JOHN DOE 2, in his individual and official capacitiesas Unit Supervisor for the Five Points Correctional Facility, Defendants.

9:19-cv-01387 (BKS/CFH)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

December 23, 2019

Appearances:

For Plaintiff:

Mario B. Williams

Angelik Edmonds

NDH LLC

44 Broad Street, NW, Suite 200

Atlanta, GA 30303

For Defendants Matthew Thoms and Anthony J. Annucci:

Letitia A. James

Attorney General of the State of New York

Helena O. Pederson

Shannan Collier Krasnokutski

Assistant Attorneys General

The Capitol

Albany, NY 12224 Hon. Brenda K. Sannes, United States District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Edward Lev, who is in the custody of the New York Department of Corrections and Community Supervision ("DOCCS") and allegedly suffers from severe mental illness, brings this action under 42 U.S.C. § 1983. (See generally Dkt. No. 9). The Amended Complaint alleges that Plaintiff's confinement in the Residential Mental Health Unit ("RMHU") at Five Points Correctional Facility ("Five Points") constitutes cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution. (Id. at 2, 20-21). Plaintiff seeks declaratory and injunctive relief against four DOCCS officers: Defendant Matthew Thoms, Five Points Superintendent; Defendant Anthony J. Annucci, Acting Commissioner of DOCCS; an unnamed officer whose title is Deputy Commissioner of DOCCS; and another unnamed officer whose title is Unit Supervisor for Five Points. (Id. at 21-22). Presently before the Court is Defendants' motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure on the ground that, inter alia, Plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a).¹ (Dkt. No. 25). Defendants also move under 28 U.S.C. § 1404(a) to transfer this case to the Western District of New York. (Id.).² Plaintiff opposes Defendants' motions. (Dkt. No. 26). The Court held oral argument on the motions on December 19, 2019. For the reasons that follow, Defendants' motion to dismiss is granted and Defendants' motion to transfer is denied as moot.

II. BACKGROUND³

Plaintiff, who is 18, "has a long history of mental illness and was first diagnosed with multiple mental health disorders beginning approximately at age six." (Dkt. No. 9, at 3). On May 31, 2019, in a related case, Lev v. Lewin, 9:19-cv-00061, the Court granted Plaintiff's motion for preliminary injunctive relief and directed the release of Plaintiff, who was then a minor, from disciplinary segregation. Paykina ex rel. E.L. v. Lewin, 387 F. Supp. 3d 225 (N.D.N.Y. 2019). Plaintiff turned 18 shortly after the issuance of the preliminary injunction and, on June 25, 2019, was transferred to Five Points, an adult maximum-security prison. (Dkt. No. 9, at 11). "Upon arrival at Five Points," Plaintiff "was placed on the wait list for the Immediate Care Program ('ICP'), a restrictive housing unit, 'at the direction of Albany.'" (Id.). On June 29, 2019, Plaintiff was transferred to the ICP "within Five Points, under the direction and control of Defendants." (Id. at 12). In the ICP, Plaintiff "was subjected to 17.5 hours a day of solitary confinement" and received "2 hours of programming in the morning and 2 hours of programming in the evening," and "2.5 hours of recreation time, either inside with the 10 other inmates in his section of the ICP or outside with all 21 other inmates in the ICP." (Id.).

Plaintiff, in "attempting to manage his behaviors in light of the deleterious impacts of isolation in the ICP, began to act out and received a weapons violation for allegedly having a lock in a sock." (Id.). On July 18, 2019, "[a]s a result of [Plaintiff's] weapons violation," he "was assigned to Keep Lock, the most restrictive form of solitary confinement, which requires 23 hours of solitary confinement and 1 hour out-of-cell time." (Id.). Plaintiff "served 29 days in Keep Lock," where, for the first two weeks, he was "unable to communicate with his supportsystem as Defendants revoked his phone privileges." (Id. at 13). After his release from Keep Lock, Plaintiff "returned to the ICP population," but "[s]hortly thereafter," he "misbehaved again, spilling coffee on another inmate." (Id.). As a result of this "minor infraction," Plaintiff "was forced to return to Keep Lock for 15 days from August 25, 2019 to September 9, 2019." (Id.). Plaintiff returned to ICP on September 9, 2019. (Id.).

On September 29, 2019, after receiving a violation "when he attempted to defend himself in a fight with another inmate," "the Warden of Five Points assigned" Plaintiff to the RMHU for 90 days. (Id. at 13-14). In the RMHU, Plaintiff "is confined to a parking lot sized cell for 19 hours per day," "receives four hours of programming, but he is shackled to a RESTART chair,"⁴ and "is allowed to exit his cell for one hour, but he is confined to an individual cage." (Id. at 14). Plaintiff is "allowed 1 family visit per week" but has no phone privileges. (Id. at 14-15). Plaintiff receives "daily visits from whom [sic] he believes is a psychologist"; the visits are "conducted through his cell door" and "last less than 5 minutes." (Id. at 15).

In the RMHU, Plaintiff's "isolation from people and inadequate mental health treatment have exacerbated [Plaintiff's] concurrent mental health disorders." (Id. at 16). "For several weeks, [Plaintiff] refused to take his medications" though he has since resumed taking them. (Id.). In the RMHU, Plaintiff "is feeling suicidal every day" and has been placed on suicide watch twice in the last two weeks. (Id. at 16-17). Plaintiff has cut himself with a staple "over 100 times" "in an attempt to stay sane." (Id. at 17-18). "[S]olitary confinement exacerbates [Plaintiff's] mental illnesses because it 'makes [him] more impulsive, dis-attached, depressed, more anxious, causes frequent headaches, and makes [him] more suicidal." (Id. at 18). Plaintiff"has expressed a desire to get treatment and to be in a residential, secured, mental health facility." (Id.).

Defendants are aware of Plaintiff's history of mental illness through review of his "inmate personnel file" and "their psychologist's mental health assessment." (Id. at 19).

III. MOTION TO TRANSFER VENUE

Defendants move under 28 U.S.C. § 1404(a) to transfer this action to the Western District of New York, where Five Points is located. (Dkt. No. 25). Under 28 U.S.C. § 1391(b)(1), a civil action may be brought in "a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located." It is not disputed that Defendant Annucci is in Albany, (Dkt. No. 25-2, at 30), thus venue in the Northern District of New York is proper under § 1391. In light of the Court's conclusion that this case must be dismissed because Plaintiff failed to exhaust his administrative remedies, the Court does not reach the issue of whether transfer is warranted under 28 U.S.C. § 1404(a), "[f]or the convenience of parties and witnesses, in the interest of justice." Accordingly, Defendants' motion to transfer is denied as moot.

IV. MOTION TO DISMISS

Defendants seek dismissal of the Amended Complaint on the ground that Plaintiff failed to exhaust administrative remedies under the PLRA prior to bringing this action. (Dkt. No. 25-2). Plaintiff opposes the motion. (Dkt. No. 26).

A. Standard of Review

To survive a motion to dismiss, "a complaint must provide 'enough facts to state a claim to relief that is plausible on its face.'" Mayor & City Council of Balt. v. Citigroup, Inc., 709 F.3d 129, 135 (2d Cir. 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Although a complaint need not contain detailed factual allegations, it may not rest on merelabels, conclusions, or a formulaic recitation of the elements of the cause of action, and the factual allegations 'must be enough to raise a right to relief above the speculative level.'" Lawtone-Bowles v. City of New York, No. 16-cv-4240, 2017 WL 4250513, at *2, 2017 U.S. Dist. LEXIS 155140, at *5 (S.D.N.Y. Sept. 22, 2017) (quoting Twombly, 550 U.S. at 555). The Court must accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. See EEOC v. Port Auth., 768 F.3d 247, 253 (2d Cir. 2014) (citing ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)).

B. Exhaustion of Administrative Remedies

The PLRA provides that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], 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." 42 U.S.C. § 1997e(a). This 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." Porter v. Nussle, 534 U.S. 516, 532 (2002).

To properly exhaust his administrative remedies, an inmate must complete the administrative review process in accord with the applicable state procedural rules.⁵ Jones v. Bock, 549 U.S. 199, 218-19 (2007). The PLRA contains one "textual exception to mandatory exhaustion." Ross v. Blake, 136 S. Ct. 1850, 1858 (2016). "Under § 1997e(a), the exhaustion requirement hinges on the 'availab[ility]' of administrative remedies: An inmate, that is, must exhaust available remedies, but need not exhaust...