Graham v. Perez

• Decision Date: 06 November 2000
• Docket Number: No. 99 Civ. 11913 (SAS).,99 Civ. 11913 (SAS).
• Citation: 121 F.Supp.2d 317
• Parties: Richard GRAHAM, Jose R. Figueroa, William Kanelos, and Protective Custody Status Inmates, Named and Unnamed, Housed in Fishkill Correctional Facility, Special Housing Units of O, P and Q Galleries, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. Ada PEREZ, Deputy Superintendent of Programs, William Mazzuca, Acting Superintendent, Glenn S. Goord, Commissioner, Donald Selsky, Director of Special Housing, and All Unnamed Persons, Sergeants, Lieutenants, Captains, and Prison Guards Working O, P and Q Galleries of Special Housing Units at Fishkill Correctional Facility, Defendants.
• Court: U.S. District Court — Southern District of New York

Page 317

121 F.Supp.2d 317

Richard GRAHAM, Jose R. Figueroa, William Kanelos, and Protective Custody Status Inmates, Named and Unnamed, Housed in Fishkill Correctional Facility, Special Housing Units of O, P and Q Galleries, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. Ada PEREZ, Deputy Superintendent of Programs, William Mazzuca, Acting Superintendent, Glenn S. Goord, Commissioner, Donald Selsky, Director of Special Housing, and All Unnamed Persons, Sergeants, Lieutenants, Captains, and Prison Guards Working O, P and Q Galleries of Special Housing Units at Fishkill Correctional Facility, Defendants.

No. 99 Civ. 11913 (SAS).

United States District Court, S.D. New York.

November 6, 2000.

COPYRIGHT MATERIAL OMITTED

Richard Graham, Otisville, New York, Jose Figueroa, Woodbourne, New York, William Kanelos, Ridgewood, New York, Plaintiffs, pro se.

Ivan B. Rubin, Assistant Attorney General, New York City, for Defendants.

OPINION AND ORDER

SCHEINDLIN, District Judge.

Pro se plaintiff Richard Graham, along with two other inmates, Jose Figueroa and William Kanelos, bring suit under 42 U.S.C. §§ 1983 and 1997 both individually and on behalf of all others similarly situated against officials and employees of the New York State Department of Correctional Services ("DOCS") at Fishkill Correctional Facility ("Fishkill") ("defendants"). The Complaint alleges that conditions for protective custody status inmates in the O, P and Q galleries of the Special Housing Unit ("SHU") at Fishkill violate plaintiffs' constitutional rights. The Complaint seeks both monetary damages and injunctive relief.

Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, defendants now move to dismiss the Complaint for failure to state a claim upon which relief can be granted. For the reasons stated below, defendants' motion to dismiss is granted, with leave to replead in part.

I. BACKGROUND

The facts set forth below are drawn from the Complaint and are presumed true for purposes of this motion.

In September 1999, Richard Graham, Jose Figueroa and William Kanelos were protective custody status inmates in the Fishkill SHU.¹ Graham arrived at Fishkill on September 3, 1999, and was placed in Unit Q of the SHU under protective custody status on September 7, 1999. Complaint ("Compl.") ¶ 16F(a)-(b).² Graham also met with medical personnel on September 7, 1999. See id. ¶ 16F(c). He was transferred to another facility for a court appearance on September 9, 1999, and subsequently returned to Unit Q on September 16, 1999. See id. ¶ 16F(h). After returning to Fishkill, Graham "made known that he didn't feel well" and that he was concerned he had not received his prescribed medications for several health conditions. Id. ¶ 16F(j)-(k). Graham saw a physician on September 21, 1999, and received his medications at that time. See id. ¶ 16F(i). Graham alleges that he was deprived of his medications for a total of thirteen days. See id. ¶ 16F(k).

On or about September 9, 1999, Graham met with Lt. Symanowicz to discuss the conditions of confinement for protective custody status inmates in the SHU. See Exhibit F to Complaint. On September 17, 1999, Graham sent a memo to Lt. Symanowicz that confirmed this conversation and detailed more than twenty-five complaints regarding the conditions in the SHU. See id. Graham and Lt. Symanowicz met again on September 24, 1999. See id. On September 26, 1999, Graham sent a second memo to Lt. Symanowicz regarding this second meeting that contained more than ten additional complaints regarding confinement conditions.³ See id. On that same day, plaintiffs Figueroa, Graham and Kanelos signed the Complaint in this case. The plaintiffs actually filed suit on December 9, 1999.

In their Complaint, plaintiffs allege that protective custody inmates housed in the O, P and Q galleries at Fishkill are subjected to a number of unconstitutional conditions of confinement. These conditions include failing to allow those inmates to be out of their cells for the required amount of time, depriving them of job opportunities, denying access to religious services, denying prison wages, failing to provide adequate medical care, limiting the location and content of their meals, and denying access to the courts. The complete list of allegations consumes twenty handwritten pages.

II. LEGAL STANDARD

Dismissal of a complaint for failure to state a claim pursuant to Rule 12(b)(6) is proper only where "it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief." Harris v. City of New York, 186 F.3d 243, 247 (2d Cir.1999). "The task of the court in ruling on a Rule 12(b)(6) motion is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir.1998) (internal quotation marks and citation omitted). To properly rule on such a motion, the court must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the nonmovant's favor. See Harris, 186 F.3d at 247. Nevertheless, "[a] complaint which consists of conclusory allegations unsupported by factual assertions fails even the liberal standard of Rule 12(b)(6)." De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 70 (2d Cir.1996) (internal quotation marks and citations omitted).

However, pro se complaints are held to "less stringent standards than formal pleadings drafted by lawyers," and are to be construed liberally on a motion to dismiss. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Thus, a pro se complaint "should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim[s] which would entitle [them] to relief." Hughes v. Rowe, 449 U.S. 5, 10, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980).

III. DISCUSSION

A. Class Certification

Plaintiffs Graham, Figueroa and Kanelos seek to bring this suit as a class action on behalf of all protective custody status inmates in the Fishkill SHU.

In order to represent a class, a plaintiff must satisfy the requirements of Rule 23(a)(4) of the Federal Rules of Civil Procedure by being able to "fairly and adequately protect the interests of the class." However, "[i]t is well settled in this circuit that pro se plaintiffs cannot act as class representatives. They do not satisfy the requirements of Rule 23(a)(4)." McLeod v. Crosson, No. 89 Civ.1952, 1989 WL 28416, at *1 (S.D.N.Y. Mar. 21, 1989). See also Phillips v. Tobin, 548 F.2d 408, 412-15 (2d Cir.1976).

Because plaintiffs are not represented by counsel,⁴ they may not act as representatives of a class and must therefore pursue their claims against defendants individually.⁵

B. Dismissal Pursuant to 42 U.S.C. § 1997e(a)

Defendants assert that Graham's claims should be dismissed for failure to exhaust administrative remedies. See Defendants' Memorandum of Law in Support of their Motion to Dismiss the Complaint ("Def.Mem.") at 7-10. Graham contends that he exhausted administrative remedies by twice writing to Lt. Symanowicz detailing his complaints. Copies of that correspondence were also sent to defendants Selsky, Goord, Perez and Mazzuca. See Compl. ¶ 12. Defendants argue that letters are insufficient to constitute exhaustion and that plaintiffs must follow more formal grievance procedures. See Def. Mem. at 7.

A prisoner must exhaust all available remedies before bringing an action regarding prison conditions. See Wright v. Dee, 54 F.Supp.2d 199, 204 (S.D.N.Y. 1999). The Prison Litigation Reform Act ("PLRA") provides 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.

42 U.S.C. § 1997e(a).⁶

New York State has established procedures for filing grievances in each of its correctional facilities. These procedures require that the inmate submit complaints to the grievance clerk of the Inmate Grievance Resolution Committee ("IGRC") within fourteen calendar days of an alleged occurrence.⁷ See N.Y. Correct. Law § 139 (McKinney Supp.1998); 7 New York Codes, Rules and Regulations ("N.Y.C.R.R.") § 701 et seq. See also Grey v. Sparhawk, No. 99 Civ. 9871, 2000 WL 815916, at *2 (S.D.N.Y. June 23, 2000) ("As an initial matter, when filing an administrative complaint, a prisoner must file the complaint with the grievance committee established at his correctional facility.").

It does not appear that Graham has sufficiently complied with the appropriate procedures, as he apparently did not file the official grievance complaint form with the IGRC.⁸ Nevertheless, even if Graham did sufficiently follow the grievance procedures, he did not exhaust the administrative remedies as required by the PLRA. Defendants argue that Graham never intended to give the procedures any chance to function, given that his last letter to prison officials was dated the same day he signed the Complaint. See Def. Mem. at 8. The simultaneous signing of the letter and the Complaint did not allow prison officials adequate time to investigate and hear the grievances raised in the memos. Allowing Graham to proceed on his claim without exhausting administrative remedies would run counter to Congress' purpose in enacting the PLRA. See Nussle v. Willette, 224 F.3d 95, 103 (2d Cir.2000) (The PLRA "is concerned with filtering out frivolous suits administratively, before they get to court.").

Accordingly, the appropriate course is to dismiss this action without prejudice, permitting Graham to seek an exception to the fourteen-day time limit. See Beeson v. Fishkill Correctional Facility, 28 F.Supp.2d 884, 894 (S.D.N.Y.1998) ("Statutory exhaustion requirements are...