KEVIN NATHANIEL FOX, Magistrate Judge.
The plaintiff, proceeding
The plaintiff's proposed claims are against the following new defendants: (1) "Lt. T. Levac," a "hearing officer" at New York's Five Points Correctional Facility; (2) "D.S.S. R. Coveny," a "review" officer at New York's Five Points Correctional Facility; and (3) Albert Prack, "Director, Special Housing/Inmate Disciplinary Program," New York State Department of Corrections and Community Supervision, in Albany. The plaintiff contends that "[t]he three (3) defendants plaintiff wants to make part of the complaint, violated plaintiff's Due Process and Constitutional Rights," and the violations alleged were "done under the continuing violation doctrine." The plaintiff asserts the following in his proposed amended complaint:
The plaintiff seeks damages and that the charges against him be dismissed and removed from his institutional records.
Exhibit A to the proposed amended complaint contains several documents reflecting the following: On May 15, 2013, Michael Sheahan, Superintendent, Five Points Correctional Facility, New York State Department of Corrections and Community Supervision, assigned L.T. Tad Levac to conduct a Tier III hearing for the misbehavior report for Eric Tolliver, "Date & Time 09/11/11 2:00 p.m." On May 24, 2013, the plaintiff sent a letter to the "Inspector General's Office," informing it about "an incident between myself and LT. Levac," described in the grievance the plaintiff filed on the same date as follows:
The plaintiff's grievance was denied. On June 25, 2013, the plaintiff's appeal of grievance number "FPT 27560-13," entitled "WANTS H.O. TO RECUSE SELF," was denied with the following explanation:
On June 26, 2013, the plaintiff made the following Appeal Statement in connection with the June 25, 2013 denial of his grievance: "I disagree with this decision due to the fact that I have yet to receive a written disposition of this (so-called superintendent's hearing) in violation of 7 NYCRR 254.7(A) Sec. 5 (24 hours violation)." The plaintiff's "grievance FPT-27560-13 entitled Wants Hearing Officer to Recuse Self was rec'd by CORC on 7/8/13."
On July 26, 2013, the plaintiff filed the following grievance:
On August 1, 2013, "P.O. Neil, IGPS" of Five Points Correctional Facility, sent a letter to the plaintiff, stating that the time limit for filing his July 26, 2013 grievance had expired, and "an exception to the time limit for filing this grievance cannot be granted by me at this time because it has well surpassed the maximum 45-day limit in which such an exception might be granted." On August 4, 2013, the plaintiff appealed the August 1, 2013 letter, contending that he
On August 13, 2013, a "Response of IGRC" stated that the finding of untimeliness was correct, since "Directive 4040 leaves no wiggle room in allowing an exception to the time frame for filing a grievance beyond 45 days from the date of the occurrence," which, in this case, "was the hearing date, not the date of discovery." The plaintiff appealed the August 13, 2013 determination, but his appeal was denied on August 20, 2013, based on the finding that "time frame was exceeded and, as such, rejection of the grievance as untimely was appropriate. It is noted that grievant had not exhausted his disciplinary appeal options on 08/01/13."
Exhibit B to the proposed amended complaint contains the plaintiff's July 16, 2013 request for a discretionary review by the superintendent. In that document, the plaintiff claimed violations of his due process rights, including his right to: (i) be advised of the rights he is giving up in refusing to attend his disciplinary hearing; (ii) receive a copy of the disposition and evidence relied upon at the hearing; and (iii) be notified of his right to appeal. On August 11, 2013, the plaintiff inquired about the status of his request for discretionary review. A letter to the plaintiff from R. Coveny, Deputy Superintendent for Security, Five Points Correctional Facility, New York State Department of Corrections and Community Supervision, dated August 13, 2013, stated: "I am in receipt of your letter to Superintendent Sheahan regarding a Discretionary Review. After review, you do not currently have any disciplinary sanctions in effect." On August 20, 2013, the plaintiff sent another request for discretionary review to "Dep. Coveny," explaining the background of his grievance and stating: "I think that you may have misunderstood what is it I was inquiring about, therefore, now that I have inform[ed] you about the facts of the matter, please I am asking, what is the status of my discretionary review request that was sent to and acknowledge[d] by the superintendent?" A letter to the plaintiff from R. Coveny, dated August 28, 2013, states: "I am in receipt of your letter to my office. After closer review, I discovered this was a re-hearing for a prior incident. The disposition has already been served. I will not adjust any sanctions imposed."
Exhibit C to the proposed amended complaint contains a letter sent to the plaintiff by Albert Prack, Director, Special Housing/Inmate Disciplinary Programs, dated August 16, 2013, stating: (a) his office received the plaintiff's appeal on July 22, 2013; (b) the office "has 60 days from the date it was received to render a decision"; and (c) "[a] review of his appeal will be conducted in accordance with established procedures and you will be notified directly of the results." A letter by Albert Prack, stamped "Received Sep 24, 2013 Tier Office" and entitled "Review of Superintendent's Hearing," stated: "On behalf of the Commissioner and in response to your recent letter of appeal, please be advised that your superintendent's hearing of June 11, 2013, has been reviewed and affirmed on September 23, 2013."
The defendants contend that "all of the alleged events concerning plaintiff's proposed new claims took place in 2013," and, "[b]ecause plaintiff's claims arising from the 2013 rehearing were, by definition, not exhausted when the `action' `yet to be initiated' was `brought' in 2012, the plain language of PLRA [the Prison Litigation Reform Act] § 1997(e)(a) requires the proposed amended complaint be rejected." Moreover, "[a]mending a complaint to add new claims that had not been exhausted prior to the filing of the original complaint does not circumvent this requirement." According to the defendants, the plaintiff is not without remedy because he "can pursue his proposed new claims as a separate action."
The defendants contend that the plaintiff's new allegations are "a supplement adding new claims against new defendants," not an amendment of his original complaint, and his motion "should be assessed under the standards set forth in Fed. R. Civ. P. 15(d)." They maintain that the proposed supplemental claims "do not satisfy the `threshold consideration' of being connected to his original complaint," since they involve new factual allegations against new defendants. According to the defendants, the plaintiff "alleges that the Western and Northern District defendants violated his due process and unspecified `constitutional' rights at the May 13, 2013 re-hearing and subsequent administrative reviews." Allowing the supplemental claims to go forward would burden and prejudice the current and the proposed new defendants "because of venue considerations," and "a jury may confuse their alleged actions with those of the original defendants in this case." Additionally, increased discovery obligations would be imposed on the current defendants and delay the action, which was already set for summary judgment briefing.
The defendants contend that the plaintiff's amendment would be futile based on the improper venue, since no basis exists to allow the proposed claims to proceed in this district. The focus of the proposed allegations is Five Points Correctional Facility, located in the Western District of New York, and allowing the proposed claims would impose undue hardship on the new defendants "by forcing them to litigate an action far outside of their proper venue." According to the defendants, "the plaintiff must show that venue is proper for each claim asserted," and "venue in this action as to these claims and defendants in the Southern District of New York under 28 U.S.C. § 1391(b) is improper because none of the proposed defendants reside here and a substantial part of the operative facts concerning the new claims raised in the proposed pleading did not occur here." Thus, "even if these claims had been initially pleaded, they would be required to be dismissed or transferred" to the proper venue on a motion by the defendants.
Furthermore, if the instant motion is treated as a motion for leave to amend the complaint, "the proposed new claims are not properly `related' to the existing claims in this case as to allow supplementation or addition via amendment," and they lack merit. The defendants maintain that the "plaintiff's proposed pleading fails to satisfy the pleading requirements of Fed. R. Civ. P. 8 as its purported factual allegations regarding alleged constitutional violations are made in the most conclusory and non-specific fashion and are defective as a matter of law." The allegations are also "devoid of any substance regarding defendants Coveny and Prack," because "reviewing the appeal of a disciplinary hearing or grievance is insufficient to find personal involvement," and no proposed allegations support the inference that either defendant should have known that the results of the underlying re-hearing were unconstitutional.
The plaintiff contends that the defendants' argument, that he failed to exhaust his proposed claims, is meritless because he exhausted them properly before filing his motion for leave to amend the complaint. Moreover, the constitutional violations alleged in the proposed claims are related to the 2013 re-hearing and are continuous and systematic, and he "could not have grieved this issue until the [r]e-hearing have concluded," which is what he did.
The plaintiff contends that he seeks to amend his complaint "under Rule 15(a)" to add three defendants, which is a proper vehicle for doing so in light of his allegations that the violations by the three new defendants represent a "continuation of the original violations that were done to the plaintiff at Sullivan Corr. Fac. that is under and within jurisdiction of the Southern District." Even under Rule 15(d)'s standard, the plaintiff contends, his proposed allegations are sufficient to have his motion granted, because all "facts surrounding three new defendants are connected to the original pleading," and fall within the continuing violation doctrine. The plaintiff asserts personal jurisdiction over the new defendants as well as supplemental jurisdiction over his proposed claims exists because they form part of the same case or controversy as the original claims. The plaintiff contends that the defendants' assertion that "the procedure for disciplinary prison inmates for serious misconduct is a matter of policy raising no constitutional issue" and their implication that "prisoners in state prisons are wholly without the protections of the Constitution and Due Process clause [are] plainly untenable." He maintains that he alleged sufficiently violations of his due process rights, which include the right to: (1) notice of the hearing; (2) be present at the hearing; (3) confront the evidence against you; (4) "be notified of the decision, and record the hearing"; (5) "be issued a written report of the evidence relied upon by the hearing officer and his reason for his decision"; and (6) "be given notice to appeal the decision."
Attached to the plaintiff's reply are documents in support of his retaliation claim against "LT. Levac," who "threaten[e]d and sw[ore] at [the plaintiff] at the start of the re-hearing out of retaliation [for] the plaintiff bringing up this officer[']s name to the executive team during the ILC meeting, because at the time this officer was the staff-advisor for the ILC committee of which plaintiff was the ILC chairman-president." According to the plaintiff, the documents attached to his reply include his grievance in connection with the denial of his "First Amendment rights to run as a ILC 11-block Rep.," which formed the basis for LT. Levac's actions.
Once the time for amending pleadings as a matter of course expires, "a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). "Leave to amend, though liberally granted, may properly be denied for: `undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.'"
"On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented." Fed. R. Civ. P. 15(d). "Absent undue delay, bad faith, dilatory tactics, undue prejudice to the party to be served with the proposed pleading or futility, the motion should be freely granted."
The plaintiff's proposed new claims concern the 2013 re-hearing of the plaintiff's grievance in connection with the September 11, 2011 incident that formed the basis of the plaintiff's original claims asserted in his 2012 complaint. Since the proposed new claims are based on the allegations related to the occurrences and omissions in connection with the 2013 rehearing, the plaintiff's motion for leave to assert them in this action is treated more properly as a motion for leave to supplement the complaint under Rule 15(d), rather than as a motion for leave to amend the complaint under Rule 15(a). In either case, the standard for determining the plaintiff's motion is the same.
"No 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 available are exhausted." 42 U.S.C. § 1997e(a). "[P]roper exhaustion of administrative remedies is necessary," and "no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted."
The defendants do not contend that the proposed new claims: (a) are not exhausted; or (b) cannot be brought in a separate action. They argue that the proposed new claims are not exhausted properly, because they "had not been exhausted prior to the filing of the original complaint." In effect, the defendants argue that permitting the plaintiff to supplement his complaint by adding the proposed new claims is futile, since, as a matter of law, any claims that arose after the filing of the complaint are barred because they had not been exhausted prior to the filing of the complaint. If the defendants are correct, it means that PLRA's exhaustion requirement makes Rule 15(d) inapplicable, namely, prisoners are barred by PLRA from supplementing their pleadings to allege any transaction, occurrence, or event that happens after the date of the pleading to be supplemented, because their exhaustion of such post-pleading claims will always be untimely with respect to "the filing of the original complaint." Under the defendants' theory, Rule 15(d) does not apply to any prisoner's exhausted claims that arise out of post-pleading occurrences or omissions, and such claims must be brought in a separate action.
The defendants do not make citation to any binding authority, in support of this extraordinary claim; unsurprisingly, since no such authority appears to exist at this time. Instead, the defendants rely on
Absent any binding authority to the contrary, the Court finds that PLRA does not bar a prisoner's motion for leave to supplement his pleading, pursuant to Rule 15(d), to set out any transaction, occurrence, or event that happens after the date of the pleading to be supplemented, as long as the prisoner has exhausted his administrative remedies related to that transaction, occurrence, or event, properly, prior to making such a motion. Thus, since the plaintiff exhausted properly his administrative remedies related to the proposed new claims based on a post-pleading event, namely, the 2013 re-hearing in connection with the September 11, 2011 incident forming the basis of his original pleading, prior to making the instant motion, his proposed new claims are not futile for failure to exhaust properly under PLRA.
"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" or "a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred," or "if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action." 28 U.S.C. § 1391(b). Improper venue is an affirmative defense that a party may assert in the answer or by a motion.
The defendants have not asserted an affirmative defense of improper venue in either their motion to dismiss or answer; thus, they waived it.
The defendants cite
It is not clear why the treatise makes citation to
Courts "are required to construe the venue statute strictly."
The defendants contend that the plaintiff's "purported allegations regarding alleged constitutional violations are made in the most conclusory and non-specific fashion and are defective as a matter of law," in contravention of "the pleading requirements of Fed. R. Civ. P. 8," and "reviewing the appeal of a disciplinary hearing or grievance is not sufficient to find personal involvement" of "Coveny" and "Prack."
"Each allegation must be simple, concise, and direct. No technical form is required." Fed. R. Civ. P. 8(d)(1). "Pleadings must be construed so as to do justice." Fed. R. Civ. P. 8(e). "[T]he pleadings of a pro se plaintiff must be read liberally and should be interpreted `to raise the strongest arguments that they suggest.'"
The plaintiff's proposed new claims are not "made in the most conclusory and nonspecific fashion and are [not] defective as a matter of law," as the defendants suggest. The plaintiff identified specific violations of his "due process and constitutional rights" in connection with the 2013 re-hearing before "L.t. T. Levac," and the subsequent related appeals. The plaintiff's Exhibit A contains,
"Personal involvement will be found . . . where a supervisory official receives and acts on a prisoner's grievance or otherwise reviews and responds to a prisoner's complaint."
The defendants contend that allowing the plaintiff to supplement his pleading would: (a) be prejudicial because "a jury may confuse [the new defendants'] actions with those of the original defendants in this case"; and (b) increase the "current" defendants' "discovery obligations and delay" the action. The defendants failed to explain why or how a jury may confuse the actions of the new defendants with those of the original defendants. Moreover, "juries are presumed to follow their instructions,"
For the foregoing reasons, the plaintiff's motion to supplement the complaint, pursuant to Rule 15(d), Docket Entry No. 57, is granted. The plaintiff's supplemental pleading, Docket Entry No. 57, is deemed filed and served on the New York Attorney General, as of the date of this order. It is ORDERED that:
