Neal v. Goord

• Citation: 267 F.3d 116,2001 WL 1178293
• Decision Date: 01 August 2000
• Docket Number: Docket No. 99-0253,PLAINTIFF-APPELLANT,DEFENDANTS-APPELLEES
• Parties: (2nd Cir. 2001) CHRISTOPHER NEAL,, v. GLENN S. GOORD, COMMISSIONER; WALTER KELLY, ATTICA, SUPERINTENDENT; HIRSCH, SGT.; JOHN DOES, AND JANE; BUEHLER, SGT.; STORRES, C.O.; BARKER, C.O.; HANSEN, C.O.; TAKOS, DR.; STEPHEN LASKOWSKI, DOCTOR,
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 116

267 F.3d 116 (2nd Cir. 2001)

CHRISTOPHER NEAL, PLAINTIFF-APPELLANT, v. GLENN S. GOORD, COMMISSIONER; WALTER KELLY, ATTICA, SUPERINTENDENT; HIRSCH, SGT.; JOHN DOES, AND JANE; BUEHLER, SGT.; STORRES, C.O.; BARKER, C.O.; HANSEN, C.O.; TAKOS, DR.; STEPHEN LASKOWSKI, DOCTOR, DEFENDANTS-APPELLEES.

Docket No. 99-0253

August Term, 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: May 25, 2001

Decided October 4, 2001

Plaintiff Christopher Neal appeals from a judgment entered August 12, 1999 in the United States District Court for the Western District of New York (Siragusa, J.), which dismissed his amended complaint, brought pursuant to 42 U.S.C. § 1983 (1994 & Supp. V 1999), for failure to exhaust administrative remedies as required by 42 U.S.C. § 1997e(a) (1994 & Supp. V 1999).

Affirmed.

Rene Reich-Graefe, New York, New York (Douglas F. Broder, Coudert Brothers, New York, New York, of counsel), for Plaintiff-Appellant.

Martin A. Hotvet, Albany, New York (Nancy A. Spiegel, Eliot Spitzer, Attorney General of the State of New York, Albany, New York, of counsel), for Defendants-Appellees.

Before: Cardamone, Parker, Circuit Judges, and MURTHA^*, District Judge.

Cardamone, Circuit Judge

There are two questions on this appeal where the issue before us is the propriety of the dismissal of plaintiff's amended complaint. The first question asks whether a prisoner's claim of an alleged deprivation of medical services must be administratively exhausted before relief may be sought in federal court. The answer to that question hinges on whether the action of which the inmate complains is properly classified as a single, momentary matter -- for example, an individualized retaliatory action against him or a particularized instance of excessive force -- in which case no exhaustion is required. Yet, if the circumstances complained of affect everyone in the prison community -- for example, food, clothing, housing, recreational facilities, that is, those things inmates of a prison share in common -- then there must be administrative exhaustion before bringing suit in federal court.

The second question is one of procedure: whether a district court confronted with a plaintiff's failure fully to exhaust administrative remedies may stay the case until such exhaustion is complete, or whether the court must dismiss the case without prejudice to its later reinstitution. We hold in this case for the first time that where exhaustion is required, failure to do so must result in dismissal, notwithstanding efforts by the inmate-plaintiff to pursue administrative remedies while simultaneously seeking relief in federal court.

BACKGROUND

Plaintiff Christopher Neal commenced this suit on April 7, 1999, pursuant to 42 U.S.C. § 1983 (1994 & Supp. V 1999), in the United States District Court for the Western District of New York (Siragusa, J.) against defendants Glenn S. Goord, Commissioner of the New York State Department of Correctional Services, Walter Kelly, Superintendent of Attica Correctional Facility, and certain Attica personnel including Sergeants Buehler and Hirsch, Officers Storres, Barker and Hansen, and Drs. Takos and Laskowski. Neal filed an amended complaint six weeks later. At the time of his pleadings, Neal was an inmate at New York State's Attica Correctional Facility, having been transferred there from another state prison, Shawangunk Correctional Facility, on March 9, 1999.

The following facts are taken from the amended complaint and its attachments. While at Shawangunk, plaintiff was injured in "an incident" on January 21, 1999. Although he received medication for his injuries upon arriving at Attica, Neal repeatedly requested a stronger prescription because of allegedly severe lower back pain. Those requests were ignored or denied. On April 18 and 19, 1999 he asked for physical therapy, which was not ordered for him until nearly two weeks later on May 1, 1999. Neal also spoke with Dr. Takos and told him that he needed special boots and sneakers. He further complained about his back pain, whereupon Dr. Takos conducted a short examination through the bars of plaintiff's cell. The doctor said he would order an x-ray, but no x-ray was ever taken. Neal further alleged in his amended complaint that defendants failed to protect him from a former Shawangunk officer, refused his request for a transfer based on his fear of retaliation by that officer, and also failed to assist him in obtaining alternative meals, legal materials, religious items and clean clothing that he had requested.

Attached as exhibits to the amended complaint were numerous documents indicating that Neal had filed grievances with the Inmate Grievance Program. While these grievances touched upon a wide variety of issues, the ones relevant to this appeal addressed Neal's request for a change in prescriptions, his need for special boots, his problems with severe back pain, his request for legal materials, and the institution's failure to provide clean sheets when his one set was in the laundry. Plaintiff also wrote several letters. In particular, he wrote defendant Goord with respect to a physical threat made by the former Shawangunk officer, and he wrote Deputy Commissioner George J. Bartlett, defendant Kelly, and Lucien Leclaire (whose official position is not identified) about his failure to receive alternative meals since arriving at Attica.

The district court, having previously granted plaintiff's request to proceed in forma pauperis, conducted a sua sponte review of the amended complaint pursuant to 28 U.S.C. §§ 1915 and 1915A (1994 & Supp. V 1999). It determined that because plaintiff failed to exhaust administrative remedies before filing his original complaint in April 1999 his claims could not go forward. The amended complaint was thereby dismissed without prejudice pursuant to 42 U.S.C. § 1997e(a) (1994 & Supp. V 1999). Judgment was entered on August 12, 1999, and plaintiff filed an appeal on August 18, 1999.

Plaintiff filed a second amended complaint on August 23, 1999. Attached as exhibits were various decisions from the Central Office Review Committee (Review Committee), which renders final decisions on inmate grievances. In the only decision pertinent to this appeal, the Review Committee had accepted in part plaintiff's grievance pertaining to his request for physical therapy. The district court treated the second amended complaint as a motion for reconsideration and denied it in a September 27, 1999 order for the same reason as had been given before, that is, because plaintiff had not exhausted his administrative remedies prior to filing the original complaint. We affirm.

ANALYSIS

I. Merits of the Dismissal

We apply a de novo standard of review to sua sponte dismissals made pursuant to 28 U.S.C. § 1915(e) or § 1915A, or 42 U.S.C. § 1997e. Marvin v. Goord, 255 F.3d 40, 42 (2d Cir. 2001) (per curiam); Giano v. Goord, 250 F.3d 146, 149-50 (2d Cir. 2001).

A. Whether Plaintiff's Inadequate Medical Treatment Claims Relate to a "Prison Condition" Subject to Exhaustion

Congress, in enacting the Prison Litigation Reform Act of 1995 (Act), Pub. L. No. 104-134, Title VIII, 110 Stat. 1321-66 (1996), carved out an exception to the general rule that exhaustion of state remedies is not a prerequisite to filing suit under 42 U.S.C. § 1983. See Nussle v. Willette, 224 F.3d 95, 97-99 (2d Cir. 2000), cert. granted sub nom. Porter v. Nussle, 121 S. Ct. 2213 (June 4, 2001) (No. 00-853). The Act amended 42 U.S.C. § 1997e(a) so that it now provides

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.

The Act does not define "prison conditions" as that term is used in this section. We have observed that "[t]he plain language of 'prison conditions' suggests those aspects of prison life affecting the entire prison population, such as the food, medical care, recreational facilities and the like." Lawrence v. Goord, 238 F.3d 182, 185 (2d Cir. 2001) (per curiam) (emphasis added); accord Nussle, 224 F.3d at 101 (quoting Carter v. Kiernan, No. 98 Civ. 2664, 1999 WL 14014, at *3 (S.D.N.Y. Jan. 14, 1999), which stated that "[t]he ordinary, contemporary, common meaning of the phrase 'prison conditions' refers to such things as medical treatment"); Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir. 1999) (noting that the phrase "conditions of confinement" has a plain meaning, which "encompasses all conditions under which a prisoner is confined," including deprivation of medical care). The Seventh Circuit, in squarely addressing the issue, found that "complaints about medical treatment in prison are complaints about 'prison conditions'." Perez v. Wis. Dep't of Corr., 182 F.3d 532, 534 (7th Cir. 1999).

Our case law requires inmates to exhaust administrative remedies under § 1997e(a) when the action affecting the prisoner was dictated by prison policy or reflected a facility-wide practice affecting the entire inmate population. See Marvin, 255 F.3d at 42-43. Based on these precedents, the district court correctly applied the exhaustion requirement. Plaintiff essentially complains of poor medical treatment. He wanted stronger medicine, but did not receive it; he wanted physical therapy sooner than it was prescribed. Dr. Takos examined him through the bars of his cell and never ordered the promised x-ray. We consider these allegations to be ordinary garden variety complaints about "prison conditions."

Plaintiff nevertheless contends that the facts of his claims are more akin to the retaliatory conduct and excessive force claims considered in Lawrence and Nussle. In each of those cases, we determined that the exhaustion requirement did not apply. Lawrence, 238 F.3d at 186 (retaliation); Nussle, 224 F.3d at 106 (excessive force). As explained in La...