Makell v. Cnty. of Nassau
| Decision Date | 22 April 2022 |
| Docket Number | 19-cv-6993 (BMC) |
| Citation | 599 F.Supp.3d 101 |
| Parties | Jermaine MAKELL, Plaintiff, v. COUNTY OF NASSAU, et al., Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Bryan Joshua Swerling, Law Offices of Bryan J. Swerling, New York, NY, for Plaintiff.
Liora M. Ben-Sorek, Nassau County Attorney's Office, Mineola, NY, Spencer David Shapiro, The Russel Friedman Law Group, LLP, Garden City, NY, for Defendants C.O. Sailor, Sheriff Fludd, County of Nassau, County of Nassau Sheriff's Department, John Donald, C.O. Daniel Golden.
Plaintiff brings this action under 42 U.S.C. §§ 1983 and 1985 against several named and unnamed officers of the Nassau County Correctional Center ("NCCC").1
He alleges deprivations of his civil rights under the Eighth and Fourteenth Amendments of the United States Constitution for injuries he received as a result of getting pepper sprayed in the face by a corrections officer who was responding to a fight in the vicinity of plaintiff's prison cell. Before the Court is defendants’ motion for summary judgment. For the reasons set forth below, defendants’ motion is GRANTED.
Plaintiff was a prisoner at NCCC from September 17, 2019 until December 31, 2019. On October 11, 2019, plaintiff was in his cell when an altercation broke out between two prisoners in his cell's vicinity.2 Plaintiff was at no point involved in this fight. One of the defendants (the parties dispute which one, but it is immaterial) deployed pepper spray, which struck plaintiff in the face. Plaintiff suffered pain, irritation, and mental distress from being sprayed in the eyes. Additionally, in his attempts to avoid the spray, he turned and "hit [his] face on the wall," which resulted in a loosened tooth.
Immediately following the incident, defendant Corporal John Donald filled out an Inmate Mental Health Service Report. Donald noted that he had "inadvertently exposed" plaintiff to pepper spray and requested a medical evaluation of plaintiff. Sergeant Jonathan Bertin confirmed that plaintiff was "examined and fully decontaminated in the E-building medical unit separately by uninvolved staff."
After the incident, plaintiff "made numerous request[s] for medical treatment for his injuries," putting in multiple sick call requests. These generally noted things like "my eyes are still burning and I can't see straight" because of the spray. Records reflect that various health care practitioners saw plaintiff in response to his complaints. Defendant corrections officers were unaware of any of plaintiff's complaints about the quality of his medical treatment as all medical issues were handled by medical staff, not the corrections officers. Plaintiff did not file any grievance proceedings relating to the incident, although he was aware of the procedure, having previously utilized it for other grievances.
While still a prisoner at NCCC, plaintiff brought this action pro se against former Sheriff Vera Fludd, and corrections officers FNU Sailor and Daniel Golden, as well as members of the medical staff at NCCC.3 Subsequently, he filed an amended complaint on June 29, 2020 against the same defendants.
On September 23, 2020, plaintiff was released from custody. He obtained counsel to represent him in this action. On November 27, 2020, plaintiff, through counsel, filed a second amended complaint, reasserting his earlier claims, and adding John Donald and unnamed correctional officers as defendants.4
Discovery having concluded, defendants have filed a motion for summary judgment.
It is well settled that summary judgment is appropriate only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A fact is ‘material’ for these purposes when it ‘might affect the outcome of the suit under the governing law.’ " Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 104 (2d Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). No genuine issue of material fact exists "unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249, 106 S.Ct. 2505. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50, 106 S.Ct. 2505 (internal citations omitted).
The party seeking summary judgment carries the burden of demonstrating the absence of any disputed issues of material fact and entitlement to judgment as a matter of law. Rojas, 660 F.3d at 104. The Court must construe the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Sledge v. Kooi, 564 F.3d 105, 108 (2d Cir. 2009).
A moving party may indicate the absence of a factual dispute by "showing ... that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(B). Once the moving party has met its burden, the non-moving party normally "must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment." Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ).
In the Prison Litigation Reform Act ("PLRA"), Congress provided that "[n]o action shall be brought with respect to prison conditions ... 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) (2000) ; see Porter v. Nussle, 534 U.S. 516, 520, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). With very limited exceptions, "[e]xhaustion is mandatory – unexhausted claims may not be pursued in federal court." Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011).
The exhaustion issue in this case arises from the fact that plaintiff filed his second amended complaint after his release from custody. The Court must therefore determine whether his released status relieved him of his obligation to exhaust by reason of the filing of the post-release second amended complaint.
Although the Second Circuit has held that a former prisoner need not exhaust if he commences the action after his release, see Gibson v. City Municipality of New York, 692 F.3d 198, 201 (2d Cir. 2012) ; Harris v. City of N.Y., 607 F.3d 18, 21–22 (2d Cir. 2010) ; Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999), it has not addressed the situation here. Decisions from other Courts of Appeals are not entirely consistent (as shown below), and the Supreme Court has declined to resolve these inconsistencies. See Wexford Health v. Garrett, ––– U.S. ––––, 140 S. Ct. 1611, 206 L.Ed.2d 955 (2020) (Thomas, J., dissenting).
The most thorough discussion of the issue appears in Garrett v. Wexford Health, 938 F.3d 69 (3d Cir. 2019), where the Third Circuit held that a former prisoner's amended complaint filed after his release absolved him of his exhaustion obligation notwithstanding his having commenced the action while in custody and without exhaustion. The Third Circuit first noted that as a rule, "an amended pleading supersedes the original pleading and renders the original pleading a nullity." Id. at 82. It observed that under Fed. R. Civ. P. Rule 15(a) or (d), failures to properly allege subject matter jurisdiction or other "status" considerations as to a plaintiff could be cured by amendment, and the amendment would relate back to the filing of the original complaint. The Court reasoned that under its own precedent and others, the PLRA should not override Rule 15 nor any other of the Federal Rules of Civil Procedure because Congress had not expressly so stated.
In support of its Rule 15 analysis, the Third Circuit relied on the Supreme Court's decision in Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007), which invalidated, as inconsistent with the Federal Rules of Civil Procedure, a special set of PLRA pleading requirements, including pleading and demonstrating exhaustion, imposed by local rule in the Sixth Circuit. The Supreme Court held that since nothing in the PLRA supplanted the requirement of Fed. R. Civ. P. Rule 8(a) for a "short and plain statement of the claim," failure to exhaust must be viewed as an affirmative defense, and the Sixth Circuit could not turn it into a plaintiff's pleading requirement by local rule.
From this, the Third Circuit reasoned, " Bock teaches ... that the usual procedural rules apply to PLRA cases unless the PLRA specifies otherwise, and that a decision about whether to apply the usual procedural rules should not be guided by ‘perceived policy concerns.’ " Garrett, 938 F.3d at 87 (quoting Jones, 549 U.S. at 212, 127 S.Ct. 910 ). The Third Circuit dismissed concerns that its holding would allow some prisoners to game the system and avoid congressional intent to require exhaustion by failing to exhaust, and then simply waiting until their release before filing an amended complaint on the ground that that was a "perceived policy concern," a consideration which the Supreme Court had discouraged. Jones, 549 U.S. at 212, 127 S.Ct. 910.
I respectfully disagree with the Third Circuit's reasoning, as I do not believe that Rule 15, or any other Federal Rule of Civil Procedure, informs the issue of exhaustion before us one way or the other. First, the Third Circuit overstated the law when it referred to an amended complaints as rendering the original complaint "a nullity." Garrett, 938 F.3d at 82. The original complaint is a nullity only regarding the determination of whether the amended complaint states a plausible claim.5 It continues to have force and effect for all other purposes.6
For example, it is well settled in the Second Circuit that the allegations...
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