VALERIE CAPRONI, District Judge.
Plaintiff Tony Tartt, pro se, alleges that prison officials at the Robert N. Davoren Complex ("RNDC") on Rikers Island forced him to ride from building to building on an overheated bus, denied him access to medication for his diabetes and asthma, improperly cuffed his hands behind his back, and maced and choked him, all over the course of approximately 20 hours. He also alleges that RNDC officials improperly confiscated his mail and photographs, mocked him, and harassed him with frequent strip and body-scan searches. Defendants move for summary judgment on the grounds that Tartt did not exhaust the available administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). Because Tartt did not exhaust his claims, but some were either not grievable or, if they were grievable, the Defendants waived the exhaustion defense, Defendants' motion is GRANTED IN PART and DENIED IN PART.
Tartt's First Amended Complaint ("FAC") alleges that Department of Corrections ("DOC") officials mistreated Tartt from approximately 2:00 p.m. on July 29, 2012,
Tartt filed grievances regarding his strip searches in May 2012 and filed complaints regarding the events of June 29-30 on July 2 and July 5, 2012. Plaintiff's Local Rule 56.1 Statement ("Plaintiff's 56.1") ¶ 10; Dantowitz Decl. Ex. D at 20. He did not receive a response to his complaints and did not pursue them further. Plaintiff's 56.1 ¶ 11; Tartt Decl. Ex. D § IV(B)(1)(d)(i). Tartt commenced this action by signing his formal complaint and providing it to DOC officials on July 5, 2012. Plaintiff's 56.1 ¶ 14.
The Court's Order of August 13, 2012 dismissed Tartt's claims against the DOC and the RNDC and required the City to help Tartt to identify several defendants who were sued as John Doe. Dkt. 6 (citing Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997) (per curiam)). Based on the City's efforts, Tartt was able to name two of the unknown John Doe Defendants. Dkt. 43 at 3-4. Tartt filed an amended complaint on May 2, 2013; in February 2014, the Defendants moved for summary judgment.
"Summary judgment is appropriate where there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law." Guippone v. BHS & B Holdings LLC, 737 F.3d 221, 225 (2d Cir. 2013) (citation omitted); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). In reviewing a motion for summary judgment, courts "must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party." Catanzaro v. Weiden, 188 F.3d 56, 61 (2d Cir. 1999). "`Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.'" Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)) (quotation marks omitted).
"It is well established that 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 (2d Cir. 2006) (per curiam) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)) (emphasis from Triestman). Courts should go to lengths to ensure that inexperienced pro se litigants do not inadvertently forfeit rights or winning arguments; this "special solicitude" includes a liberal construction of papers and a flexibility on some otherwiserigid procedural rules. Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010). Courts "should be particularly solicitous of pro se litigants who assert civil rights claims" and incarcerated litigants. Id. at 102. Tartt falls into both categories.
Congress passed Section 803 of the PLRA "to `invigorate the exhaustion prescription' for prisoners." Ruggiero v. Cnty. of Orange, 467 F.3d 170, 173 (2d Cir. 2006) (quoting Porter v. Nussle, 534 U.S. 516, 524 (2002)). Section 803 provides:
42 U.S.C. § 1997e(a). The administrative process that a prisoner must exhaust is "defined not by the PLRA, but by the prison grievance process itself." Jones v. Bock, 549 U.S. 199, 218 (2007). "The exhaustion inquiry thus requires that [courts] look at the state prison procedures and the prisoner's grievance to determine whether the prisoner has complied with those procedures." Espinal v. Goord, 558 F.3d 119, 124 (2d Cir. 2009). The Supreme Court in Jones rejected a "total exhaustion" rule that would bar any lawsuit containing one unexhausted claim, instead requiring district courts to dismiss non-exhausted claims and permit the others to proceed. 549 U.S. at 222-23.
"[W]hile the PLRA's exhaustion requirement is mandatory, certain caveats apply." Ruggiero, 467 F.3d at 175 (quotation marks, citations, and alterations omitted). The three exceptions are: (1) courts should not require exhaustion when no administrative remedies were available to the prisoner; (2) defendants may waive or forfeit the defense of nonexhaustion; and (3) "special circumstances" may justify a prisoner's failure to comply with administrative procedural requirements. Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004). A prisoner's "reasonable misunderstanding of the grievance procedures" is one "special circumstance" that can forgive the failure to exhaust administrative remedies. Ruggiero, 467 F.3d at 175.
New York has a standard process for adjudicating inmate complaints. Espinal, 558 F.3d at 125 (citing N.Y. Comp. Codes R. & Regs. ("NYCRR"), tit. 7, § 701.5 (2008)). First, the inmate must file a grievance with the Inmate Grievance Resolution Committee ("IGRC"), which has up to 16 days to resolve the grievance informally and 30 days to resolve it formally. 7 NYCRR § 701.5(b). Second, the inmate may appeal to the facility superintendent for review within one week. 7 NYCRR § 701.5(c). After that, the inmate may appeal to the Central Office Review Committee ("CORC"). 7 NYCRR § 701.5(d). Finally, the Board of Corrections may review the CORC's decision. Dantowitz Decl. Ex. B § IV(B)(3)(c). After all of these avenues for redress are exhausted, an inmate may initiate a federal action.
New York's administrative code has established a separate more expedited process for certain types of grievances, including allegations that involve harassment and strip searches. 7 NYCRR §§ 701.5, 701.8, 701.10.
The Inmate Handbook
The Court interprets Tartt's brief as arguing that he did exhaust all administrative remedies but that, if the Court determines he did not, then he was not required to do so. Neither argument is persuasive as to his claims relating to overheating, lewd insults, indifference to medical condition, and improper confiscation of mail and photographs.
Tartt did not pursue any administrative remedies beyond filing an initial complaint, which may or may not have raised all of those claims. Tartt states that he received no response to his grievances and concedes that he did not pursue the standard process that IGRP provides for pursuing a grievance. Plaintiff's 56.1 ¶¶ 11, 15. Despite his argument to the contrary, id. ¶ 17, merely filing a complaint without awaiting a response does not exhaust the inmate grievance process. 7 NYCRR § 701.5.
Tartt appears to argue in the alternative that his complaints related to overheating, lewd insults, indifference to medical condition, and improper confiscation of mail and photographs were non-grievable complaints. Even giving Plaintiff's claims the very liberal construction that this Court must given his pro se status, those claims simply do not constitute claims of assault or harassment. To shoehorn these claims into the IGRP's non-grievable category would eviscerate the exhaustion requirement altogether.
Tartt also appears to argue that he reasonably, although mistakenly, believed that these claims were not subject to the IGRP's grievance procedures. See Giano v. Goord, 380 F.3d 670, 678 (2d Cir. 2004). Tartt acknowledges both receipt of the Prison Handbook and familiarity with the IGRP. Plaintiff's 56.1 ¶¶ 2, 4. "Receipt of such a handbook generally indicates that the inmates were informed of the grievance procedure so as to make that procedure `available' to them." Smith v. City of New York, No. 12-cv-3303(CM), 2013 WL 5434144, at *10 (S.D.N.Y. Sept. 26, 2013). Tartt's awareness of the process is further evidenced by the fact that he filed a number of grievances. When "`the record reflects that plaintiff continued to file grievance after grievance during the period' of alleged unavailability, `it is apparent that a reasonable person of ordinary firmness in plaintiff[']s position, as well as plaintiff himself, would not have thought that administrative remedies were unavailable.'" Kasiem v. Switz, 756 F.Supp.2d 570, 577 (S.D.N.Y. 2010) (quoting Harrison v. Goord, No. 07-cv-1806(HB), 2009 WL 1605770, at *6 (S.D.N.Y. June 9, 2009)) (alterations omitted). Moreover, inmates are advised that if they are "unsure whether an issue is grievable, [they] should file a grievance." Dantowitz Decl. Ex. C at 21.
Finally, Tartt argues that it would have been futile for him to pursue his grievances through administrative channels. See Plaintiff's 56.1 ¶ 15. Because he directed some of his grievances at the Warden and Deputy Warden, Tartt asserted that the officers responsible for the standard grievance processes would not follow the standard protocol. Dantowitz Decl. Ex. D at 29-30. But courts regularly apply the exhaustion requirement in the context of lawsuits against senior prison officials, including wardens and commissioners. See, e.g., Johnson, 2013 WL 5718474, at *4; Ramrattan v. Schriro, No. 11-cv-3749(JMF), 2013 WL 3009908, at *1 (S.D.N.Y. June 17, 2013). Their inclusion does not per se render a grievance futile.
Tartt separately argues that no one responded to his May and June grievances, which caused him to lose faith in the grievance process. Id. Not believing that the process will yield a fair result in a particular case is not, of course, grounds for an inmate to forgo required administrative procedures. Exhaustion requirements apply even when "a party [] conclude[s]— correctly or incorrectly—that exhaustion is not efficient in that party's particular case." Woodford v. Ngo, 548 U.S. 81, 89 (2006). The appropriate recourse when a prisoner believes that he will lose his grievance is to file the grievance, lose, exhaust the administrative avenues of appeal, and then sue. See id. at 89-90; but see id. at 103 (Justice Breyer, concurring) (citing Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 13 (2000) for the principle that futility could sometimes excuse failure to exhaust). Even if futility is a defense to an inmate's failure to exhaust administrative claims, Tartt has not established that it would have been futile for him to pursue standard administrative remedies in this case.
Tartt's claims other than for excessive force and harassment are therefore barred by his failure to exhaust available administrative procedures.
Tartt also raises a claim of excessive force (specifically that he was maced and choked when he failed to comply with directives to stand) and a claim that, given his pro se status, the Court interprets as alleging harassment (strip and body-scan searches with undue frequency designed to annoy or intimidate an inmate).
Tartt and Defendants agree that "Plaintiff's excessive force claim is not subject to the DOC grievance process." Def. Reply at 6. Although the administrative code suggests that such grievances should be filed as normal claims and will be handled through DOC's "expedited process" for harassment claims, 7 NYCRR §§ 701.2(e), 701.5(a)(2), 701.8(a), Defendants do not argue here that there is any administrative process through which Tartt should have submitted his complaint of excessive force. To the extent there is an administrative grievance process for such claims at Rikers, Defendants have waived any defense of non-exhaustion that they might otherwise have advanced. Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004); see 7 NYCRR § 701.8.
Tartt also alleges that "C.O. Moss was constantly harassing [him]," FAC at 4, and specifically characterizes his repeated trips to the body scanner as "repeated incidents of harassment." Id. at 3. Both references to Moss in the FAC are in close proximity to Tartt's claims about being incessantly strip searched. Id. at 3-4. The Court "liberally construes" Tartt's pro se complaint to allege that Moss subjected him to the strip searches without legitimate penological purposes.
Defendants' summary judgment motion ignores the expedited grievance process established by New York law for harassment claims, instead stating simply that harassment claims are not grievable. Reply at 4. Accordingly, as with the excessive force claims, the Court concludes that if there is an administrative process that could have been used, and therefore a corresponding exhaustion requirement, Defendants have waived it.
Although stating that harassment claims are not grievable, Defendants assert that Tartt's claims based on the strip searches are subject to the IGRP's exhaustion requirements. Reply at 3-4. The implicit argument — not spelled out in Defendants' papers — is that strip searches cannot constitute harassment.
Defendants point to no authority holding that, as a matter of law, an allegation that a corrections official has deliberately targeted an inmate for strip searches "five days out of seven or sometimes seven days out of seven," Dantowitz Decl. Ex. D at 20, based on unsubstantiated suspicions, does not constitute an allegation of "employee conduct meant to annoy, intimidate, or harm an inmate," 7 NYCRR § 701.2(e). Tartt's pro se complaint, read liberally and with "special solicitude," Triestman, 470 F.3d at 475, suggests that Moss targeted him for invasive strip searches for the purposes of annoying or intimidating him. Not every prisoner's claim that he was improperly strip searched will constitute harassment for the purposes of the IGRP, but Tartt's does. In light of Defendants' failure to join issue over whether there even is an administrative process that handles claims of harassment, this Court cannot dismiss Plaintiff's harassment claim for failure to exhaust.
After nine months of discovery and diligent efforts by Defendants to assist him, Tartt has still been unable to identify the officers who allegedly maced and choked him. "`It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010) (quoting Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006)). Tartt is advised that if he is unable to identify his assailants within a reasonable time, his claims for excessive force will be dismissed. See Valentin, 121 F.3d at 75.
For the above stated reasons, Defendants' motion for summary judgment is GRANTED IN PART and DENIED IN PART. Tartt's claims against Hill, Lett and Payne are dismissed with prejudice for failure to exhaust administrative remedies. The Clerk of the Court is respectfully directed to terminate Dkt. 34 and terminate the case as against Defendants Hill, Lett and Payne.
Dantowitz Decl. Ex. B § II(C)(2). The Directive later provides that inmates complaining of "assault, harassment or criminal misconduct . . . shall be advised that complaints involving removal of a staff person may be addressed by direct submission to the Commanding Officer (or designee), Inspector General, or Investigation Division." Id. § II(C)(3). It is silent whether a direct submission is required or permitted if the inmate is not seeking "removal of the staff person."
FAC at 4 (emphasis added).
