Ligon v. Doherty, CV 00-0253(TCP)(ETB).

• Decision Date: 25 June 2002
• Docket Number: No. CV 00-0253(TCP)(ETB).,CV 00-0253(TCP)(ETB).
• Citation: 208 F.Supp.2d 384
• Parties: Carl A. LIGON, Jr., Plaintiff, v. Dennis DOHERTY, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

208 F.Supp.2d 384

Carl A. LIGON, Jr., Plaintiff, v. Dennis DOHERTY, et al., Defendants.

No. CV 00-0253(TCP)(ETB).

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

June 25, 2002.

Harry H. Kutner, Jr., Kutner & Lynch, Mineola, NY, for Plaintiff.

W. Scott Schneider, Suffolk County Attorney's Office, Hauppauge, NY, for Defendants.

MEMORANDUM OPINION AND ORDER

BOYLE, United States Magistrate Judge.

By order of the undersigned, dated April 4, 2002, the pro se plaintiff, Carl A. Ligon, Jr., and counsel for the County of Suffolk and its named defendant correction officers were directed to show cause, in writing, on or before May 3, 2002, why this action should not be dismissed, without prejudice, pursuant to Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (Feb. 26, 2002).

The Factual Background

This action was commenced by counsel, Harry H. Kutner, Jr., representing the plaintiff, on January 13, 2000. The action is filed pursuant to 42 U.S.C. §§ 1983, 1985(3) and 1988, and seeks money damages arising from a single episode of alleged assault by Suffolk County corrections officers at the Suffolk County Jail on January 21, 1999. The plaintiff seeks damages based on the use of excessive force, false imprisonment (prisoner isolation) and malicious prosecution (violation of prison regulations). Supplemental jurisdiction of the district court is invoked with respect to claims for abuse of process, malicious prosecution and false arrest. At the time of the commencement of this action the plaintiff was no longer an inmate at the Suffolk County Jail, having been transferred from that facility on April 19, 1999 to the New York State Hudson Correctional Facility in Colombia County.

The complaint is devoid of any allegations as to exhaustion of administrative remedies at the Suffolk County Jail prior to the initiation of this action. This is confirmed by records attached to the County Attorney's submission in support of dismissal, by Assistant County Attorney John D. Aspland, Esq. These records indicate that at the hearing conducted pursuant to New York General Municipal Law § 50 h, the plaintiff testified that he did not file any complaint or grievance with the jail authorities prior to commencement of this action. See Exhibit B at 75-76, annexed to County submission, dated May 2, 2002. Also annexed at Exhibit A to the County's submission is a copy of the applicable Correctional Facility Rules & Regulations of the Suffolk County Sheriff (Revised October 1976) with respect to the "Resident Grievance and Complaint Procedure" for jail inmates. See Exhibit A at pp. 8-9.

Counsel for the plaintiff was permitted to withdraw from this action on April 1, 2002. The pro se plaintiff failed to appear, contrary to specific instructions, at a conference held on April 1, 2002 at 10:00 a.m., the return date of his attorney's application to be relieved, and failed to make any submission on this show cause order. The court has subsequently been informed that the defendant on or before April 2002 was returned to custody and is presently incarcerated at the Suffolk County Jail.

The New York State prison system maintains a website where a prisoner's whereabouts in the New York State prison system may be tracked. The court will take judicial notice of the records posted by the New York State Department of Correctional Services as to the plaintiff herein. See www.docs.state.ny.us at Inmate Information-Location/Status Legal Dates/etc. (Carl Ligon, DIN 99R2348). This record states that the plaintiff was transferred upstate to the Mid Hudson Correctional Facility maintained by the State of New York on April 19, 1999.

DISCUSSION

The Prison Litigation Reform Act of 1995 ("PLRA"), 42 U.S.C. § 1997e(a) (1994 ed., Supp. V), provides:

[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. (Emphasis added.)

In Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002), the court held that the reference to "prison conditions" noted above in the PLRA applies to "all inmate suits about prison life, whether they involve general circumstances or particular episodes." Id. at 992. Where however, as here, an administrative officer has no authority to act on the subject of a complaint, the inmate has nothing to exhaust. Booth v. Churner, 532 U.S. 731, 736, 121 S.Ct. 1819, 1822 n. 4, 149 L.Ed.2d 958 (2001) (The PLRA requires administrative exhaustion of remedies where the grievance process is authorized to provide some responsive action, even though it is not authorized to provide money damages which the plaintiff seeks); see also Stanislas v. Tolson, No. 00-5419, 2002 WL 718441, at *1 (E.D.N.Y. Mar. 19, 2002) (Raggi, J.). Plaintiffs who are not in custody at the time of the commencement of an action challenging prison conditions are not considered "prisoners" under section 1997e(a) and therefore are not subject to the exhaustion requirement under this provision. Greig v. Goord, 169 F.3d 165, 167 (2d Cir.1999). As noted in Cox v. Malone, No. 00-8355, 2002 WL 727019 (S.D.N.Y. Apr. 24, 2002) "it makes no sense to apply this procedural requirement to former inmates who can no longer avail themselves of prison grievance procedures." Id. at *4.

The same reasoning should apply here. Even though the plaintiff remained an inmate, and therefore was a "prisoner" under section 1997e(a), when the action was commenced he was not a prisoner at the correctional facility where the incident allegedly occurred, having been transferred to an upstate facility maintained by the State of New York. Thus the focus here must...