ERIC N. VITALIANO, District Judge.
Pro se plaintiff Roy Taylor filed this § 1983 action alleging that defendants violated his constitutional rights during his detention at the Otis Bantum Correctional Center ("OBCC") and the Eric M. Taylor Center ("EMTC") on Rikers Island. (Compl., ECF No. 1). In a Memorandum and Order, dated January 28,2015, plaintiffs claims against several defendants were dismissed. (Mem. & Order, ECF No. 8). Presently before the Court is the motion by Correction Officers ("C.O.s") Dunson and Ellis, social service counselors Berry and Hakim, and Captain Elam to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief may be granted. (Defs. Mot., ECF No. 34).
As alleged in Taylor's complaint, in August 2013, he was incarcerated following a guilty plea to two counts of disorderly conduct while on post-release supervision. (Compl. ¶1; Def. Mem. at 1, ECF No. 35). In October 2013, at a time when Taylor was in court, a violent incident occurred at OBCC among five or more rival gang members. (Compl. 3, 5-6, 11). As a result, defendant OBCC Warden Wettington placed Taylor's unit on lockdown for one month, required unit detainees to turn over their property and legal work, and had them wear brown jumpsuits. (Id.).
Following these events, these detainees were not permitted a second set of clothing, such that Taylor could not, for example, change into a new jumpsuit after exercising. (Compl. ¶¶ 5-6). Taylor claims that "[t]hus, inmates and plaintiff [were] subject to go months without a change of clothes," and they had to wear "jumpsuits without a change for 2 months." (Id. ¶6). It is unclear whether Taylor is further alleging that his jumpsuit was not laundered during that time. He also claims that detainees were denied winter clothing ("winter coats, boots, thermals, underwear, top & bottom, socks, and cap or gloves") and winter blankets, despite temperatures dipping below zero during the winter months. (Id. ¶6). Although there were no blankets available when he arrived, he found a transferred detainee's dirty blanket, which, he alleges, infected him with "a serious cold." (Id. ¶7).
As part of the lockdown, Warden Wettington required inmates to be escorted on their travel. Only one officer was assigned to this task, resulting in Taylor being prevented from attending Muslim religious services on Fridays. (Id. ¶¶3-4). Taylor identifies defendants Captain Elam and C.O.s Cruz and Smith as denying him access to religious services. Similarly, he was denied his regular access to the law library. When his unit was able to use the library, though, they were not permitted to mix with the general population, but were relegated to a separate room with, he asserts, inferior resources. (Id. ¶12).
Taylor alleges, further, that social service counselors Hakim, Berry, Moore and Gentry, who are each named as defendants, ignored his requests to contact the courts and his requests concerning personal property he was trying to retrieve from a transition house. (Id. ¶¶9-10). Likewise, he claims that defendant Grievance Coordinator Mulvanny ignored his grievances. (Id.) Taylor next alleges interference with his legal and personal mail. For instance, his legal mail was not always sent out due to a lack of postage for indigent inmates, and it was sometimes held for up to 90 days and/or thrown out. (Compl. K 13). He claims that legal or personal mail was sent with insufficient postage on 3 occasions and that defendants wrongly marked mail "return to sender wrong address." (Id.) At EMTC, on or around February 2014, C.O. Dunson allegedly refused to accept 5 pieces of legal mail in one day, and told Taylor he "was sending too much legal mail out." (Id. ¶ 14). Taylor alleges that the "same thing occurred at OBCC" with Mailroom C.O. Kelly. (Id.).
Taylor filed grievances and letters concerning these complaints, but "never received any response after more than 90 days." (Compl. at 15). Taylor alleges he took "several" steps to appeal his grievances, but the complaint does not explain what actions he took. (Id.). After this deficiency was raised on the motion to dismiss (Defs. Mem. 3), Taylor submitted copies of the grievances and letters he filed. (Pl. Mem. Exs. A-D, ECF Nos. 33-1, 33-2, 33-3, 33-4; Compl. at 15-16). From September 2013 to January 2014, he filed 15 grievance forms addressing, sporadically, the various allegations described above.
The January 28,2015 order dismissed some of Taylor's claims pursuant to 28 U.S.C. §§ 1915(a)-(b)(1), in that the claims pleaded against the New York City Department of Correction ("DOC"), New York State Department of Corrections and Community Supervision ("DOCCS"), Administrative Law Judge Eva Urrutia, and Tina. M. Stanford, the chairman of the Board of Parole, were dismissed on applicable immunity grounds and for failure to state a claim. His claims against C.O. Santiago, Security C.O. Thompson, Parole Officer Crome, Deputy Warden Nance, and Mailroom C.O. Kelly were dismissed for failure to identify any direct or personal involvement in the alleged constitutional deprivations. (Mem. & Order 4-9, ECF No. 8). Taylor moved for reconsideration of this decision, which was denied. (Mem. & Order, ECF No. 11). is on this record that the latest motions were submitted for decision.
"A motion for reconsideration should be granted only when the [party seeking reconsideration] identifies `an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" Kolel Beth Yechiel Mechil ofTartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 104 (2d Cir. 2013) (quoting Virgin Atl. Airways, Ltd v. Nat'l Mediation Bd., 956 F.2d 1245,1255 (2d Cir. 1992)). Applying this rule of thumb, "a motion to reconsider should not be granted where the moving party seeks solely to relitigate an issue already decided." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Under Local Civil Rule 6.3, furthermore, a motion for reconsideration must be served within 14 days of the entry of the disputed order. See E.D.N.Y. Local Civ. R. 6.3.
Often, on dismissal motions, the central issue is the sufficiency of the complaint's pleading. "[A] complaint must contain sufficient factual matter, accepted as true, 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)). A claim is plausible "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. Prior to filing a responsive pleading, a defendant may move to dismiss a complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), where the complaint the motion attacks fails to do so.
When considering a 12(b)(6) motion, the district court must "accept all factual allegations in the complaint as true and draw all reasonable inferences in plaintiffs favor." In re Thelen LLP, 736 F.3d 213, 218 (2d Cir. 2013). Keeping in mind, at the same time, that, although a pro se plaintiff is still required to abide by the Federal Rules of Civil Procedure, on a motion to dismiss, a pro se complaint "must be construed liberally with `special solicitude' and interpreted to raise the strongest claims that it suggests." Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013) (quoting Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)); see Radin v. Tun, No. 12 Civ. 1393 (ARR) (VMS), 2015 WL 4645255, at *5 (E.D.N.Y. Aug. 4,2015). Nevertheless, courts "`are not bound to accept as true a legal conclusion couched as a factual allegation.'" Twombly, 550 U.S. at 555.
On a motion to dismiss, the district court "may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint." DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) In addition, the motion court "may consider factual allegations made by a pro se party in his papers opposing the motion." Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013). Though, in the context of self-represented litigants, these considerations are, generally, leavened by the understanding that courts will not dismiss a pro se complaint without providing leave to amend at least once unless "it is `beyond doubt that the plaintiff can provide no set of facts in support' of his amended claims." Harrison v. New York, 95 F.Supp.3d 293, 331 (E.D.N.Y. 2015) (quoting Pangburn v. Culbertson, 200 F.3d 65, 71 (2d Cir. 1999)).
Taylor's second motion for reconsideration is time-barred, as he mailed his motion on June 29, 2015, five months after the entry of the order he challenges, and nearly three months after the adverse decision on the first motion for reconsideration. (Pl. Mot. at 2, ECF No. 30). fin any event, with one exception futile for other reasons,
However, a point raised by Taylor proves more troubling. On further review of his complaint, the Court finds he did raise specific allegations against C.O. Kelly, who was dismissed from this action for lack of any direct or personal involvement. This is significant because a district court has the authority to revise its pre final judgment orders "at any time before the entry of a judgment." Sinoying Logistics Pte Ltd. v. Yi Da Xin Trading Corp., 619 F.3d 207, 212 (2d Cir. 2010) (quoting Fed. R. Civ. P. 54(b)). As a consequence, the January 28, 2015 order is vacated and revised to the extent that the claims against C.O. Kelly are reinstated. They will now be considered on other grounds below. The balance of the original order is reinstated with the same full force and effect.
Defendants move for dismissal of the complaint for failure to exhaust administrative remedies, or, in the alternative, for failure to state any constitutional violation. (Def. Mem., ECF No. 35). Taylor responds that he has met his burden under § 1983. (Pl. Mem., ECF No. 33).
The Prison Reform Litigation Act ("PRLA") provides that "[n]o 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. "PLRA's 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, 122 S.Ct. 983,992, 152 L. Ed. 2d 12 (2002). Administrative exhaustion is "a pleading requirement rather than an affirmative defense," and, while a plaintiff need not plead that he has exhausted his administrative remedies, "that is not to say that failure to exhaust cannot be a basis for dismissal for failure to state a claim." Jones v. Bock, 549 U.S. 199, 215-16, 127 S.Ct. 910, 921, 166 L. Ed. 2d 798 (2007). Consequently, a court may dismiss a complaint "if it pleads facts demonstrating that administrative remedies were not exhausted." Khudan v. Lee, No. 12 Civ. 8147 (RJS), 2015 WL 5544316, at *4 (S.D.N.Y. Sept. 17, 2015) (quoting Garvin v. Rivera, No. 13 Civ. 7054 (RJS), 2015 WL 876464, at *2 (S.D.N.Y. Feb. 28, 2015)).
A prisoner's administrative remedies "are defined not by the PLRA, but by the prison grievance process itself." Jones, 549 U.S. at 218. As relevant to this case, it is noted that DOC established the Inmate Grievance and Request Program ("IGRP").
It is the defense contention that Taylor failed to exhaust all of the administrative remedies available through IGRP. At minimum, certainly, the complaint is unclear on this point, referring vaguely to "several" efforts plaintiff took towards appeal, without identifying those efforts. (Compl. at 15). He has now supplemented his complaint with the grievances has attached various letters to his opposition. The supplementation is significant because, although motions to dismiss are generally limited to the pleadings, courts, as noted earlier, may consider factual allegations raised in a pro se plaintiffs opposition papers, without converting the motion to one for summary judgment. See Walker, 717 F.3d at 122 n.1; Mayes v. N.Y.C. Police Dep't, No. 10 Civ. 1690 (JSR) (JLC), 2011 WL 2206739, at *3 (S.D.N.Y. June 6, 2011), R. & R. adopted, No. 10 Civ. 1690 (JSR), 2011 WL 3743309 (S.D.N.Y. Aug. 23, 2011). And, Taylor's supplementation shall be so considered.
Taylor's numerous grievances and letters demonstrate that he made many attempts to be heard, but he did so in a piecemeal fashion that did not exhaust his administrative remedies, even though he sometimes noted the failure of correction officials to respond and his frequent requests for an investigation. Yet, it also appears that he did not timely file the appropriate forms to appeal any one of his several grievances through each of the four grievance stages.
Taylor argues that his failure to exhaust should, nonetheless, be excused because "jail officials did everything in their power to inhibit [him][] in the grievance process by simply never responding to any of the grievances filed. . . ." (Pl. Mem. 3). Importantly, where "the defendants' own actions prevent a prisoner from pursuing administrative remedies, the prisoner's failure to avail himself of those remedies cannot bar his access to the courts." Ruggiero v. Cty. of Orange, 467 F.3d 170,178 (2d Cir. 2006). In this case, given the prevailing grievance framework, defendants' silence did not prevent Taylor from pursuing his remedies. IGRP specifically contemplates that prison officials may fail to respond to grievances. Courts in this circuit routinely find a failure to exhaust where a prisoner fails to complete the IGRP process after receiving no response. See, e.g., Johnson v. Stevens, No. 12 Civ. 5186 (RRM) (MDG), 2014 WL 4722711, at *2 (E.D.N.Y. Sept. 22, 2014); Rivera v. Anna M. Kross Ctr., No. 10 Civ. 8696 (RJH), 2012 WL 383941, at *5 (S.D.N.Y. Feb. 7, 2012). As these cases point out, the grievance procedures provided a specific remedy to grieve the failure of grievance officials to respond to a prisoner's grievance. Taylor's exhaustion roadblock stems from his failure to avail himself of and exhaust that remedy.
At the same time, dismissal on the strength of this pleading deficiency is not appropriate at this time because it is not apparent that Taylor was ever made aware of how to appeal when prison officials proved nonresponsive. "[A]n administrative remedy is not `available,' and therefore need not be exhausted, if prison officials erroneously inform an inmate that the remedy does not exist or inaccurately describe the steps he needs to take to pursue it." Butler v. Viscusi, No. 11 Civ. 4844 (JFB) (WDW), 2014 WL 1407262, at *7 (E.D.N.Y. Apr. 11, 2014) (quoting Pavey v. Conley, 663 F.3d 899, 906 (7th Cir. 2011)); see Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004). IGRP states that prisoners will be informed of its procedures "through the Inmate Handbook, posters displayed in congregate areas, and new-admission orientation." IGRP, II.D. Neither the pleadings nor the motion papers state whether such notice occurred. Though Taylor has submitted the instructions printed on the back of his grievance forms, the instructions only explain how to appeal unfavorable decisions, and lack an explanation of how to exhaust remedies when no decision issues. (PI. Mem. Ex. B at 11, 13, ECF No. 33-2; see IGRP, IV.D.10.a, Attachment B). Presumably, defendants have documents or materials that complete the instructions that the documents Taylor has submitted begin to tell. But, it cannot simply be assumed the missing instructions are present in the inmate handbook, or even that Taylor received a handbook, as the documents he attached to his opposition papers might suggest.
In similar situations, courts have found it prudent to order limited discovery on whether the prisoner's failure to exhaust may be excused. See, e.g., Khudan, 2015 WL 5544316, at *5 (where there was no response to the plaintiffs grievance, ordering limited, expedited discovery on whether the failure to exhaust was excused). Following such limited discovery or at summary judgment, after an opportunity for discovery, a plaintiffs failure to assert "that he was unaware of the grievance procedures," may warrant dismissal. Ruggiero, 467 F.3d at 178. With these guideposts in place, limited discovery on the issue of exhaustion is appropriate and is ordered. The motion to dismiss on the ground of failure to exhaust administrative remedies as required by PLRA is denied without prejudice and with leave to renew upon the conclusion of the limited discovery now ordered.
For the reasons set forth above, the motion to dismiss is denied without prejudice and with leave to renew. Plaintiffs second motion for reconsideration is denied, but the January 28, 2015 order is vacated and revised to the extent that the claims against C.O. Kelly are reinstated As revised, that order is re-instated in full force and effect.
This matter is respectfully referred to Magistrate Judge Robert M. Levy for the purpose of supervising the conduct of limited discovery as to administrative exhaustion.
