Giano v. Goord
| Decision Date | 01 August 1999 |
| Docket Number | Docket No. 98-2619 |
| Citation | 250 F.3d 146 |
| Parties | (2nd Cir. 2001) JULIO F. GIANO, Plaintiff-Appellant, v. GLENN GOORD, Commissioner, Department of Correctional Services, DONALD SELSKY, Director, Special Housing Programs, FRANK IRVIN, Superintendent, Wende Correctional Facility, ROY HENNEBERG, Deputy Superintendent of Security, JEFFREY SKINNER, Captain, Wende Correctional Facility, WALTER SHANNON, Lieutenant, Wende Correctional Facility, JAMES BURKE, Sergeant, Wende Correctional Facility, TIMOTHY JEZIORSKI, Sergeant, Wende Correctional Facility, THOMAS LAMB, MICHAEL BISHOP, GARY KEOHANE, E. McEVOY, HOWARD BRENNAN, JOHN BARBERA, JOHN DOE, Correctional Officers, Wende Correctional Facility, Defendants Appellees |
| Court | U.S. Court of Appeals — Second Circuit |
Appeal from a judgment of the United States District Court for the Western District of New York (Charles J. Siragusa, Judge) dismissing sua sponte incarcerated plaintiff's 42U.S.C.§1983 claims pursuant to 28U.S.C. §1915(e) and 42 U.S.C. § 1997e(a).
Affirmed in part; vacated and remanded in part.
PETER A. SULLIVAN, Hughes, Hubbard & Reed LLP, New York, NY, and Julio F. Giano, Comstock, NY, pro se, for Plaintiff-Appellant.
MARTIN A. HOTVET, Assistant Solicitor General, State of New York, Albany, NY for "Defendants-Appellees."*
Before: FEINBERG, KEARSE, and SACK, Circuit Judges.
Plaintiff-appellant Julio F. Giano appeals from a judgment of the United States District Court for the Western District of New York (Charles A. Siragusa, Judge) that, inter alia, dismissed without prejudice plaintiff's claims under 42 U.S.C. §1983 regarding allegations of retaliation and faulty prison drug-testing procedures, and dismissed with prejudice plaintiff's 42 U.S.C. §1983 claims regarding allegations that Giano was deprived of privacy rights under the Fourth Amendment of the United States Constitution as applied to the States under the Fourteenth Amendment, and due process rights under the Fourteenth Amendment. See Giano v. Goord, 9F.Supp.2d 235 (W.D.N.Y. 1998). We affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.
The allegations in Giano's complaint are described in some detail in Giano, 9 F. Supp. 2d at 236-39. For purposes of our disposition of this appeal, the following outline of those allegations will suffice.
In June 1995, Giano, then an inmate at the Auburn Correctional Facility in New York, led a protest against actions taken by the New York Department of Correctional Services there. Shortly thereafter, Giano was transferred to another prison, apparently the Wende Correctional Facility. In November 1995, while incarcerated at Wende, Giano filed a lawsuit unrelated to the present action alleging that Wende officials had retaliated against him for the actions Giano had taken while at Auburn.
In September 1996, one of the defendants, a correctional officer at Wende, received what he said was a confidential report about Giano, which falsely asserted that Giano had been using marijuana. Giano was therefore given a urine test, which he failed. The procedures for taking and testing urine samples were not secure, enabling several of the defendants deliberately to contaminate Giano's sample in order to produce the false positive result.
Giano further alleges that a false misbehavior report charging marijuana use by Giano, based on the rigged results of the urine test, was then filed by two of the defendants. The resulting disciplinary hearing, rife with violations of Giano's procedural due process rights, resulted in his serving thirty-five days in keeplock with loss of privileges, although the charges against him were eventually dismissed.
In November of the same year, after Giano visited with his mother as part of a "family reunion" program, he was asked to give another urine sample. In order to further retaliate against Giano, the persons named as defendants in the complaint contaminated this sample so that it too would test positive for marijuana. Another false misbehavior report followed. At the ensuing disciplinary hearing, Giano was found guilty of marijuana use, and was sentenced to, among other things, thirty days of keeplock, loss of privileges and suspension for one year from the family reunion program.
In May 1997, Giano filed a complaint in the United States District Court for the Western District of New York making the foregoing allegations against the defendants and asserting ten causes of action under 42U.S.C.§1983 against them. Count one alleges a violation of Giano's Fourth Amendment rights in the course of procurement of his urine samples. Counts two, three, four, and five set forth claims of retaliation alleging that samples of his urine were not kept in tamper-proof bottles and were not stored in a secure room, thus allowing the conspiring persons named as defendants to contaminate them with marijuana in retaliation against the plaintiff for filing the earlier §1983 action. Counts six, seven, eight, and nine allege various due process violations in connection with Giano's disciplinary hearings. Count ten challenges the constitutionality of the drug testing procedures at Wende.
Before Giano could cause his complaint to be served, the district court, sua sponte, dismissed it in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 42 U.S.C. §1997e(a). See Giano, 9 F. Supp. 2d at 239. The district court dismissed counts one, six, seven, eight, and nine with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on which relief may be granted. See Giano, 9 F. Supp. 2d at 240-42. The district court dismissed the remainder of Giano's complaint-- counts two, three, four, five, and ten-- without prejudice because the court found that Giano had failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). See Giano, 9 F. Supp. 2d at 239-40. Giano appealed.
The appeal was submitted to this Court on January 4, 2000. We subsequently ordered that counsel be appointed for Giano and that supplemental briefs be submitted by such counsel and by the Attorney General of the State of New York addressing:
(1) Whether, under the [PLRA], a plaintiff must exhaust administrative remedies before asserting a cause of action in federal court that asks solely for monetary damages, even though monetary damages are not available administratively; (2) Whether a complaint about drug testing procedures is one made with respect to prison conditions for purposes of the PLRA; (3) Whether it is relevant for purposes of the PLRA's exhaustion requirement that the plaintiff alleges that the complained of conduct was retaliatory; and (4) Any other issues that the parties think relevant to the disposition of this appeal.
A supplemental brief addressing these issues was filed on Giano's behalf on September 14, 2000. On October 27, 2000, the Attorney General responded by letter brief. Giano asserts that the district court should not have dismissed the counts that were dismissed with prejudice without affording him notice and an opportunity to be heard. He argues with respect to the counts dismissed without prejudice that the §1997(e)(a) exhaustion requirement applies only to complaints made "with respect to prison conditions" and not to his claims of individualized acts of retaliation. He contends in the alternative that he should have been excused from exhausting his administrative remedies because attempting to do so would have been futile.
We conclude that the district court correctly dismissed count ten without prejudice because it alleged a violation of a prison condition which is subject to the PLRA's exhaustion requirement. We hold, however, that the district court erred in dismissing counts two, three, four, and five because they allege specific acts of retaliation that do not constitute prison conditions and are therefore not subject to the exhaustion requirement. We also hold that under these circumstances, Giano should be afforded the opportunity to be heard in opposition to the dismissal of counts one, six, seven, eight, and nine.
Under 42 U.S.C. § 1997e(c), a court must dismiss a prisoner's § 1983 "action brought with respect to prison conditions... if the court is satisfied that the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief." Similarly, pursuant to 28 U.S.C. §1915(e)(2), a court must dismiss "at any time" a complaint filed in forma pauperis "if the court determines that... the action or appeal -- (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." We review a district court's sua sponte dismissal pursuant to 28 U.S.C § 1915(e) and 42 U.S.C. § 1997e de novo. See Liner v. Goord, 196 F.3d 132, 134 (2d Cir. 1999) ().
Exhaustion of state remedies is not a prerequisite to maintaining an action under § 1983 unless specifically required by Congress. See Lawrence v. Goord, 238 F.3d 182, 185 (2d Cir. 2001); Nussle v. Willette, 224 F.3d 95, 97-98 (2d Cir. 2000). Congress amended 42 U.S.C. § 1997e(a) through the PLRA to require that:
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 district court's dismissal of counts two, three, four, five, and ten was warranted only if they are...
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