Mimms v. Carr

REGINALD MIMMS, Plaintiff, v. A.W. CARR, CAPTAIN HESS, CAPTAIN PENNICK K. PAGE, K. SMALL, J. ANDERSON, C. MARSHALL D. GONZALEZ, RAMCHARAN, MS. HAMILTON and DR. ITTAYEM, Defendants.

09-CV-5740 (NGG) (LB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: June 7, 2011

Filed: June 9, 2011

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiff pro se Reginald Mimms ("Mimms") brings this action under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) against various government employees working at the Metropolitan Detention Center ("MDC"), a prison run by the United States Bureau of Prisons ("BOP"). (See Am. Compl. (Docket Entry # 7).) Defendants move to dismiss under Federal Rule of Civil Procedure 12(b)(6).¹ (Docket Entry # 48.) For the following reasons, Defendants' motion is granted in part and denied in part.

I. BACKGROUND

Mimms alleges a series of events that occurred at the MDC between October 2009 and January 2010. (See Am. Compl.) Accompanying the Amended Complaint is an "Appendix" that includes several administrative grievance forms that Mimms filed, some of which correspond to the incidents alleged in the Amended Complaint, but many of which do not. (SeeDocket Entry ## 7-1,7-2.) Also included in the Appendix are several requests by Mimms for medical treatment. (See Docket Entry # 7-3.) Mimms's specific allegations against the named Defendants are as follows:²

(1) On October 4,2009, Defendant Associate Warden Carr ("Carr") threatened to place Mimms in the "Special Housing Unit ['SHU'] and [to] give[] [him] an incident report for asking questions regarding the cadre program," a prison program he was assigned to. (Am. Compl. at 4, 13.) In addition, Carr warned Mimms, "Do what we say or we'll lock you up." (Id. at 13.)

(2) On January 6,2010, Defendant C. Marshall ("Marshall") made an inappropriate, sexually suggestive comment to Mimms, saying, "When you gonna let me suck that[?]," while looking at Mimms's crotch. (Id. at 5.)

(3) Mimms alleges a series of instances from October 2009 to January 2010 in which MDC employees—namely, Defendants J. Anderson ("Anderson"), K. Page ("Page"), K. Small ("Small"), Captain Hess ("Hess"), and Captain Pennick ("Pennick")—mishandled his administrative grievances by failing to accept them, failing to respond to them, or failing to forward them to appropriate parties. (Id. at 5,12,13.)

(4) On January 8,2010, Defendant Dr. Ittayem ("Ittayem") refused to treat Mimms after he complained of nerve damage in his arm (id. at 5, 8) and, on January 14,2010, Defendant Ms. Hamilton ("Hamilton") failed to respond to Mimms's request for dental treatment (id. at 6, 8).

(5) Mimms alleges that, on January 12 and 13,2010, Anderson, Marshall, and other members of MDC staff retaliated against him for repeatedly filing administrative grievances. Anderson was part of the "unit team" assigned to Mimms, which apparently had someresponsibility for handling his administrative grievances. (Id. at 13.) On three prior occasions— in October and December 2009—Mimms had handed Anderson grievances on other staff members. (Id. at 5,13.) On these occasions, Anderson had said to Mimms, "You sure you want to file this[?]," "I'm tired of you and these ... administrative remedies," and "I'm so sick of you and these" administrative grievances. (Id. at 5,13.)

On January 12,2010, Mimms attempted to give Anderson a grievance "on the legal department," which Anderson refused to accept. (Id. at 6.) "Ten minutes" later, Anderson "coerced" Marshall into "shak[ing] down" Mimms's cell and confiscating his belongings, (Id.) The same day, Marshall "ranted angrily" at Mimms, saying "let what I've taken from you be a lesson" and "the next time you write me up, spell my name right—Marshall has two L's." (Id.) The next day, January 13,2010, Marshall sprayed ketchup all over Mimms's cell and told Mimms's cellmate, "Tell Mimms to clean that shit up or I'll give him an incident report." (Id.) That same day, Mimms received four "incident reports." (Id.) After Mimms explained to Defendant D. Gonzalez ("Gonzalez") that Gonzalez was "violating policy and my rights regarding incident reports and policy," Gonzalez said, "I have to lock you up." (Id.) Mimms was then placed in the SHU; he does not state for how long. (Id.)

Mimms alleges that he was the victim of "retaliation for filing on staff." (Id.) He further alleges that Anderson and Marshall are liable for "conspiring to falsely arrest and imprison [him] for exercising his constitutional rights by filing administrative remedies against staff for misconduct." (Id. at 7.)

In addition to alleging that Anderson, Marshall, and Gonzalez were involved in imposing discipline on him in retaliation for his filing of grievances, Mimms alleges that Page and Defendant Ramcharan ("Ramcharan"), along with Anderson and Marshall, "caused [his]wrongful charging, prosecution, false report, and ... wrongful conviction of prison infractions by coercing, constructing, altering, manipulating, and fabricating evidence which formed the basis for plaintiff [sic] charges." (Id.) Mimms does not provide any detail as to how or when such fabrication occurred.

(6) Mimms alleges that Carr, Hess, Pennick, Page, and Small failed to properly supervise or train Anderson and Marshall. (Id. at 4, 8,12.)

Nothing in Mimms's Amended Complaint or Appendix indicates that he fully exhausted any of his administrative grievances, as required, and Defendants move to dismiss on this ground (see Def. Mem. (Docket Entry # 52) at 5-7). In response, Mimms claims that he somehow exhausted his administrative remedies by filing separate civil suits in connection with unrelated, prior events at different correctional facilities. (See Mimms Resp. (Docket Entry # 46) at 2.) Mimms does not state that he exhausted his claims in any other fashion. He also argues that, in any event, the BOP's administrative grievance procedure violates the First Amendment, such that exhaustion should be excused, (Id.) Mimms's own submissions establish that he did not exhaust his administrative remedies as per BOP procedure.

II. DISCUSSION

A. Applicable Legal Standards

1. Motion to Dismiss Standard

In reviewing a defendant's motion to dismiss under Rule 12(b)(6), the court accepts as true all allegations of fact made by the plaintiff and draws all reasonable inferences from these allegations in the Plaintiff's favor. See ATSI Commc'ns. Inc. v. Shaar Fund. Ltd., 493 F.3d 87, 98 (2d Cir. 2007). "[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89,94 (2007) (internal quotation marks omitted). But while "the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest," Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,474-75 (2d Cir. 2006) (internal quotation marks omitted), even a pro se complaint will be dismissed if it does not contain "sufficient factual matter, accepted as true, 'to state a claim to relief that is plausible on its face,'" Ashcroft v. Iqbal, 129 S. Ct. 1937,1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949.

Bivens provides a remedy only for constitutional violations. See Benzman v. Whitman, 523 F.3d 119,125 (2d Cir. 2008) ("A Bivens action is a blunt and powerful instrument for correcting constitutional violations[.]"); Kingsley v. Bureau of Prisons, 937 F.2d 26, 31 (2d Cir. 1991) ("In a Bivens action, 'damages may be obtained for injuries consequent upon a violation of [the Constitution] by federal officials."') (quoting Bivens, 403 U.S. at 395). Thus, to the extent Mimms's claims fail to state a constitutional violation, they will be dismissed.

2. Exhaustion

Under the Prison Litigation Reform Act of 1996 ("PLRA"), an action may not be brought "with respect to prison conditions under [42 U.S.C. §] 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." 42 U.S.C.A. § 1997e(a); see Porter v. Nussle, 534 U.S. 516,524 (2002) (noting that PLRA exhaustion requirement applies to Bivens claims). "Once within the discretion of the district court, exhaustion in cases covered by [the PLRA] is now mandatory." Id. The PLRA "requires proper exhaustion," Woodford v. Ngo, 548 U.S. 81, 93(2006), which means the prisoner must "compl [y] with the agency's deadlines and other critical procedural rules," id. at 90; see also Davis v. Reilly, 324 F. Supp. 2d 361, 365 (E.D.N.Y. 2004) (finding that, to satisfy the exhaustion requirement, a prisoner "must pursue his challenge ... through to the highest level of administrative review prior to his suit").

The BOP has established a four-step administrative-remedies process that federal inmates must follow to meet the PLRA's exhaustion requirement. First, the inmate must attempt to informally resolve any issue of concern with prison staff. 28 C.F.R. § 542.13(a). If the inmate is dissatisfied with the informal resolution, he must submit a formal Administrative Remedy Request (BP-9) within twenty days of the incident in question. Id. § 542.14(a). Within twenty days of such filing, the prison warden is required to respond in writing. Id. § 542.18. An inmate who is not satisfied with the warden's response to his BP-9 may submit an appeal on a BP-10 form to the Regional Director within twenty days of the date of the warden's response. Id. § 542.15(a). The Regional Director is required to respond in writing within thirty days of such filing. Id. § 542.18. An inmate who is not satisfied with the Regional Director's...