McGee v. McGready et al, No. 7:2016cv04187 - Document 47 (S.D.N.Y. 2018)

Court Description: OPINION & ORDER re: 29 MOTION to Dismiss the Amended Complaint. filed by A. Black, Jackson. For the foregoing reasons, Defendants' motion is GRANTED in part and DENIED in part. Plaintiff's Eighth Amendment and claims pre mised on the failure to process his grievances are dismissed. The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 29. The parties are directed to confer, complete and submit to the Court a completed case management plan (blank form attached) within thirty (30) days of the date of this opinion. (Signed by Judge Nelson Stephen Roman on 4/30/2018) Copies Mailed By Chambers. (kgo)

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McGee v. McGready et al Doc. 47 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK TONY MCGEE, ELECTnONICALL y r;;c DOC/,': C ikf Zsf._C: .j DATS F_I_L_.S_D_:--~ 1~- - - Plaintiff, 16-CV-4187 (NSR) -againstCORRECTION OFFICER MCGREADY, et al., OPINION & ORDER Defendants. NELSONS. ROMAN, United States District Judge: Plaintiff, Tony McGee ("Plaintiff"), an incarcerated pro se inmate at Sing Sing Conectional Facility, brings this action pursuant 42 U.S.C. § 1983 against Inmate Grievance Supervisor Anthony Black ("Black"), former Conections Counselor Mary Jackson (" Jackson"), Sergeant Murray or Murphy ("Sgt. Murray"), Sergeant Poole ("Sgt. Poole") and several other conections officers. 1 Before this court is Defendant Black and Jackson's motion to dismiss the amended complaint as against them based on failure to plead a plausible claim, failure to exhaust administrative remedies, and qualified immunity. For the foregoing reasons, the motion is GRANTED. FACTUAL BACKGROUND The following facts are taken from Plaintiff's Amended Complaint and are deemed true for the purpose of this motion. Plaintiff alleges that on or about July 22, 2013, while in the mess hall he was assaulted by a fellow "gang related Hispanic inmate" who made a derogatory or offensive statement. In response to the statement, Plaintiff punched the inmate in the face resulting in an altercation. 1 The operative complaint is the Amended Complaint filed February 2, 2017. (ECF No. 22.) Copies~d_ :\ \':!>ol 2D18~ Chambers ofNclson S. ~oman, u.S ll I. Dockets.Justia.com During the fight, Plaintiff was repeatedly punched about the face causing several lacerations. Plaintiff alleges that a "Black Correction Officer"2 was present in the mess hall, observed the incident, and failed to prevent it and/or failed to intervene. On or about July 11, 2013, approximately eleven days prior to the altercation, Plaintiff spoke to Jackson and requested that he be placed in protective custody because he was threatened and being targeted by "gang-related Hispanic inmates." Jackson purportedly prepared a request for "voluntary protective custody," and informed Plaintiff he would be contacted sometime later. Later that day, Plaintiff was interviewed by Sgt. Murray concerning his request for protective custody. Plaintiff purportedly informed Sgt. Murray of the threats and being targeted. Plaintiff was once again informed he would be contacted sometime later. Plaintiff's request was not granted. Plaintiff suggests had he been placed in protective custody, as requested, he would not have been assaulted and injured. Additionally, Plaintiff asserts that Defendant Black failed to process multiple sick-call grievances by failing to forward them to Central Office Review Committee ("CORC"). Plaintiff asse1ts claims under the Eight and Fourteenth Amendments. STANDARD OF REVIEW Rule 12(b)(6) On a 12(b)(6) motion, dismissal is proper unless the complaint "contain[s] sufficient factual matter, accepted as trne, to 'state a claim to relief 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)). When there ai·e well-pied factual allegations in the complaint, "a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id at 679. The 2 In his complaint, Plaintiff appears to identify the "Black Correction Officer" as C.O. Javier Caban. 2 critical inquiry is whether the plaintiff has pied sufficient facts to nudge the claims "across the line from conceivable to plausible." Twombly, 550 U.S. at 555. A motion to dismiss will be denied where the allegations "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Where a pro se Plaintiff is concerned, Courts must construe the pleadings in a particularly liberal fashion. Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). The Comt must therefore interpret the pleading "to raise the strongest arguments that [it] suggest[s]." Harris v. City of NY., 607 F.3d 18, 24 (2d Cir. 2010) (internal quotations and citation omitted). Nevertheless, a pro se plaintiff's pleading must contain factual allegations that sufficiently "raise a right to relief above the speculative level" (Jackson v. N Y.S. Dept ofLabor, 709 F. Supp. 2d 218, 224 (S.D.N.Y 2010)), and the Court's duty to construe the complaint liberally is not "the equivalent of a duty to re-write it." Geldzahler v. New York Medical College, 663 F. Supp. 2d 379, 387 (S.D.N.Y 2009). Exhaustion The Prison Litigation Reform Act ("PLRA") precludes the filing of an action "with respect to prison conditions under [42 US.C. § 1983) ... by a prisoner confined in any jail, prison or other conection facility until such administrative remedies as are available are exhausted." Williams v. Corr. Officer Priatno, 829 F.3d 118, 122 (2d Cir. 2016) (internal quotations omitted). Whether an inmate has exhausted all administrative remedies turns on a review of "the state prison procedures [available] and the prisoner's grievance .... " See Espinal v. Goard, 558 F.3d 119, 124 (2d Cir. 2009) citing Jones v. Bock, 549 U.S. 199, 218 (2007). Grievances at DOCCS are governed by the Inmate Grievance Program ("IGP"), which is based on a three-tiered system. Id. at 125. To adjudicate an inmate complaint: "(I) the prisoner files a grievance with the Inmate 3 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 CORC. Id.; see also N.Y. Comp. Codes. R. & Regs., tit. 7, § 701.7 (1999). Notably, exhaustion is an affirmative defense, not a pleading requirement; thus, inmate plaintiffs need not "specially plead or demonstrate exhaustion in their complaints." Jones, 549 U.S. at 216. Instead, Defendants must demonstrate lack of exhaustion. Colon v. N YS. Dept of Corr. & Cmty. Supervision, No. 15-CV-7432(NSR), 2017 WL 4157372, at *5 (S.D.N.Y Sept. 15, 2017) citing Key v. Toussaint, 660 F. Supp. 2d 518, 523 (S.D.N.Y. 2009). Dismissal on a 12(b)(6) motion for failure to exhaust is pennissible where "it is clear on the face of the complaint that the plaintiff did not satisfy the PLRA exhaustion requirement." Williams, 829 F.3d at 122; see also Parris v. NYS. Dept Corr. Servs., 947 F. Supp. 2d 354,261 (S.D.N.Y. 2013) (citing Johnson v. Westchester Cnty. Dept of Con: Med Dept, No. 10-CV6309, 2011 WL 2946168, at *2 (S.D.N.Y. July 19, 2011) for proposition that denial of motion was appropriate where complaint was ambiguous as to exhaustion). Further, on such a motion, where a comt is confined to the four corners of the complaint, the documents attached thereto, and things of which it is entitled to take judicial notice (see, e.g., Kleinman v. Elan Co,p., 706 F.3d 145, 152 (2d Cir. 2013); Gonzalez v. Hasty, 651 F.3d 318, 321 (2d Cir. 2011)), a court is only pe1mitted to consider outside documents related to exhaustion and submitted by defendants under limited circumstances. See, Smith v. Miller, No. 15-CV-9561 (NSR), 2017 WL 4838322, at *5 (S.D.N.Y. Oct. 23, 2017) (noting comts can take judicial notice of administrative records in Section 1983 cases in limited circumstances). Those include instances where "the complaint a) was the standard pro se form complaint that has a check-box regarding exhaustion, b) contained 4 allegations clearly stating that the inmate had exhausted his administrative remedies, or c) clearly pointed to the fact that the inmate had, in fact, not exhausted." Colon, 2017 WL 4157372, at *5. Qualified Immunity "Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was 'clearly established' at the time of the challenged conduct." Ashcroft v. a/- Kidd, 563 U.S. 731, 735 (2011) citin~Harlow v. Fitzgerald, 457 U.S. 800,818 (1982). "If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct." Harlow, 457 U.S. at 81819. It is within the Court's discretion to determine the order in which the two prongs are analyzed. Pearson v. Callahan, 555 U.S. 223, 236 (2009). DISCUSSION Plaintiff asserts §1983 claims under the Eighth Amendment against Defendants Black and Johnson. The essence of Plaintiff's claim is a failure to protect. Plaintiff's complaint suggest that Defendants' failure in processing or approving his request for voluntary confinement resulted in his subsequent assault. Or, construing the allegations liberally as the Court is required to do, but for Defendants' failure in placing him in voluntary protective custody, Plaintiff would not have been attacked and injured by a fellow inmate. Plaintiff's 1983 complaint is that he was subjected to cruel and unusual punishment in violation of the Eighth Amendment, made applicable to the States by the Fourteenth. See Estelle v. Gamble, 429 U.S. 97, 102 (1976) citing Robinson v. California, 370 U.S. 660 (1962). "To prevail on an Eighth Amendment claim, an inmate must first show that his injmy is objectively a 'sufficiently serious' one." Brims v. Burdi, No. 03-CV-3159 (WHP), 2014 WL 1403281, at *2 5 (S.D.N.Y. June 23, 2004) quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). Additionally, a _plaintiff must "show that the defendant had knowledge of [the] prisoner's problem and was deliberately indifferent to [the] prisoner's plight." Calhoun v. NY. State Div. of Parole Officers, 999 F.2d 647,654 (2d Cir. 1993) citing Sample v. Diecks, 885 F.2d 1099, 1110 (3d Cir. 1989). Deliberate indifference requires a showing that the conditions of incarceration posed a substantial risk of serious harm, and that prison officials possessed sufficient culpable intent. Hayes v. New York City Dep't Of Corr., 84 F.3d 614,620 (2d Cir.1996) citing Farmer v. Brennan, 511 U.S. 825, 834 (1994).The deliberate indifference requires a two prongs analysis: substantial risk of serious harm, objective prong; and sufficient culpable intent, subjective prong. Farmer, 511 U.S. at 834; Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996). Here, the objective prong is meet and not disputed. Subjectively, the prison official acts with the requisite sufficient culpable state of mind when he (or she) "has knowledge that an inmate faces a substantial risk of serious harm and he disregards that risk by failing to take reasonable measures to abate the haim." Hayes, 84 F.3d at 620. Comts have denied deliberate indifference claims based upon surprise attacks. See Fernandez v. N Y.C. Dep't of Corr., No. 08-CV-4294 (KMW), 2010 WL 1222017, at *4 (S.D.N.Y. Mar. 29, 2010); Zimmerman v. Macomber, No. 95-CV-0882(DAB), 2001 WL 946383 (S.D.N.Y. Aug. 21, 2001). Plaintiff alleges he provided advance notice to Jackson and Black of threats and a possible attack. Plaintiff's allegation also suggest he identified the attacker(s), "gang related Hispanic irunates" at the facility. Plaintiff's allegations suggest that Black and Jackson failed to take reasonable measures to abate the impending attack. Thus, Plaintiff has pied a plausible Eighth Amendment claim. 6 Plaintiff's Eighth Amendment claim, however, fails for failure to exhaust his administrative remedies. This case involves the use of the prose form complaint which contains the equivalent of a check-box exhaustion section. The amended complaint is clear as to whether Plaintiff alleges he grieved his claims. Plaintiff explicitly states he filed grievances concerning, inter alia, the "5 sick call request," the "non-protection grievances" and the "foreseeable assault." (See Amended Comp!., Sect. IV., E (1).) Because the exhaustion issue is an integral part of the prisoner's claims, the Comt may refer to materials outside of the complaint on a 12(b)( 6) motion in dete1mining whether a plaintiff has exhausted. See Smart v. Goode, No. 04-CV-8850 (RWS), 2008 WL 591230, at *2 (S.D.N.Y. Mar. 3, 2008) (recognizing that the Court's previous opinion "[did] not faithfully capture the subtlety of exhaustion doctrine in the Second Circuit" and that the Court should have addressed non-exhaustion as an affirmative defense). In suppo1t of their motion, Defendants submit a declaration from Karen Bellamy ("Bellamy"), the Director of the Inmate Grievance Program ("IGP"). Bellamy avers that she is the custodian of records maintained by the CORC, which is tasked with rendering administrative decisions on grievances filed by inmates. Based upon her review of the records, she found that Plaintiff made other complaints concerning meals, conditions of the facility, and "problems with security staff" on December 17, 2013. Plaintiff, however, did not file a grievance concerning the July 22nd incident nor his request for voluntary confinement. Though Plaintiff attempts to rebut Defendants' showing, mere conclusory statements in opposition is insufficient. Accordingly, Plaintiff's Eighth Amendment claims must be dismissed. Plaintiff also asse1ts a claim based on Defendant Black's failure to process his grievances, including his "5 sick call grievances." It is well settled that in order to succeed on a§ 1983 claim, Plaintiff must show that he has been deprived of a constitutional or other federal right. 42 7 U.S.C. § 1983. Inmate grievances procedures are undertaken voluntarily by the states and are not constitutionally required. Johnson v. New York City Dep't ofHealth, No. 06-CV-13699 (BSJ)(FM), 2008 WL 5378124, at *3 (S.D.N.Y. Dec. 22, 2008) (internal citation omitted). Accordingly, a failure to process a prisoner's grievance(s) does not in itself give rise to a constitutional claim. Swift v. Tweddell, 582 F. Supp. 2d 437, 445-46 (W.D.N.Y. 2008) (internal citations omitted).This claim must therefore be dismissed. CONCLUSION For the foregoing reasons, Defendants' motion is GRANTED in part and DENIED in part. Plaintiff's Eighth Amendment and claims premised on the failure to process his grievances are dismissed. The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 29. The parties are directed to confer, complete and submit to the Comt a completed case management plan (blank fo1m attached) within thirty (30) days of the date of this opinion. SO ORDERED. Dated: April 30, 2018 White Plains, New York United States District Judge 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK Rev. Jan. 2012 -------------------------------------------------------------x Plaintiff(s), CIVIL CASE DISCOVERY PLAN AND SCHEDULING ORDER Defendant(s). _ _ cv ____ (NSR) - against - -------------------------------------------------------------x This Civil Case Discovery Plan and Scheduling Order is adopted, after consultation with counsel, pursuant to Fed. R. Civ. P. 16 and 26(f): 1. All patties [consent] [do not consent] to conducting all fmther proceedings before a Magistrate Judge, including motions and trial, pursuant to 28 U.S.C. § 636(c). The patties are free to withhold consent without adverse substantive consequences. (If all parties consent, the remaining paragraphs of this form need not be completed.) 2. This case [is] [is not] to be tried to a jmy. 3. Jo inder of additional patties must be accomplished by 4. Amended pleadings may be filed until _ _ _ _ _ _ _ __ 5. Interrogatories shall be served no later than _ _ _ _ _ _ _ _, and responses thereto shall be served within thilty (30) days thereafter. The provisions of Local Civil Rule 33.3 [shall] [shall not] apply to this case. 6. First request for production of documents, if any, shall be served no later than 7. Non-expert depositions shall be completed by _ _ _ _ _ _ _ _ _ _ __ a. Unless counsel agree otherwise or the Comt so orders, depositions shall not be held until all patties have responded to any first requests for production of documents. b. Depositions shall proceed concurrently. c. Whenever possible, unless counsel agree othe1wise or the Comt so orders, non-party depositions shall follow party depositions. 8. Any further interrogatories, including expe1t interrogatories, shall be served no later than - - - - - - - - - - - 9. Requests to Admit, if any, shall be served no later than 10. Expert reports shall be served no later than _ _ _ _ _ _ _ _ __ 11. Rebuttal expert rep01ts shall be served no later than _ _ _ _ _ _ _ _ __ 12. Expe,t depositions shall be completed by _ _ _ _ _ _ _ _ _ _, 13. Additional provisions agreed upon by counsel are attached hereto and made a part hereof. 14. ALL DISCOVERY SHALL BE COMPLETED BY 15. Any motions shall be filed in accordance with the Comt's Individual Practices. 16. This Civil Case Discove1y Plan and Scheduling Order may not be changed without leave of Comt (or the assigned Magistrate Judge acting under a specific order of reference). 17. The Magistrate Judge assigned to this case is the Hon. _ _ _ _ _ _ _ _ __ 18. If, after enlly of this Order, the paities consent to trial before a Magistrate Judge, the Magistrate Judge will schedule a date ce1tain for trial and will, if necessary, amend this Order consistent therewith. 19. The next case management conference is scheduled for _ _ _ _ _ _ _ _ __ at ______. (The Comt will set this date at the initial conference.) SO ORDERED. Dated: White Plains, New York Nelson S. Roman, U.S. District Judge

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