Ortiz v. McBride

Citation380 F.3d 649
Decision Date18 August 2004
Docket NumberNo. 02-0088.,02-0088.
PartiesJose ORTIZ, Plaintiff-Appellant, v. D. McBRIDE, Sgt. & R.O. Mara, Counselor of Arthur Kill Correctional Facility, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Appeal from the United States District Court for the Eastern District of New York, Jack B. Weinstein, Senior District Judge.

John Boston, The Legal Aid Society (Daniel L. Greenberg, Mary Lynne Werlwas, of counsel), New York, NY, for Appellant.

David Lawrence III, Assistant Solicitor General for the State of New York (Eliot Spitzer, Attorney General of the State of New York; Caitlin J. Halligan, Solicitor General; Michael S. Delohlavek, Deputy Solicitor General; Martin Hotvet, Thomas B. Litsky, Sachin S. Pandya, Assistant Solicitors General, of counsel), New York, NY, for Appellees.

Before: CALABRESI and SACK, Circuit Judges, and PAULEY, District Judge.*

SACK, Circuit Judge.

In this appeal, we consider whether the exhaustion provision of the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), requires a federal district court to dismiss in its entirety a prisoner's complaint brought pursuant to 42 U.S.C. § 1983 with respect to the conditions of his or her incarceration if the complaint contains any claim that has not been administratively exhausted within the prison system. Based on an examination of the text of section 1997e and the policies underlying the PLRA, we conclude that such complete dismissal is not required.

This appeal also presents the question whether the due process claim of the plaintiff-appellant, in which he alleges unusually harsh confinement in a special housing unit ("SHU"), can survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) despite the fact that his period of confinement was less than 101 days. In accordance with our recent decision in Palmer v. Richards, 364 F.3d 60, 64-66 (2d Cir.2004), and based on the allegations of fact of this case, we conclude that it can.


Many of the relevant facts underlying this appeal are set forth in our prior opinion in this case. Ortiz v. McBride, 323 F.3d 191, 192-94 (2d Cir.2003) (per curiam). We repeat them here insofar as we think it necessary to explain our resolution of this appeal. Because the appeal is from the district court's dismissal of Ortiz's complaint, we state the facts as they are alleged in the First Amended Complaint. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003).

The Arthur Kill Correctional Facility is a prison administered by the New York State Department of Correctional Services ("DOCS"). On September 29, 1998, while Ortiz was incarcerated in Arthur Kill, defendant-appellee Sergeant D. McBride, a corrections officer, confronted Ortiz with the allegations of a confidential informant that Ortiz had violated DOCS rules by smuggling drugs into, and selling them within, Arthur Kill. Ortiz denied the allegations.

Four times, McBride ordered Ortiz to take a urine test in an apparent attempt to establish that he was using (rather than that he had imported or sold) drugs. Each time, the test results were negative. Nonetheless, and despite the fact that the drug smuggling and sale allegations were based entirely on information provided to McBride by the confidential informant, McBride instituted disciplinary proceedings against Ortiz.

On October 2, 1998, the charges against Ortiz were heard in a disciplinary proceeding over which defendant-appellee R.O. Mara, an Arthur Kill counselor, presided (the "Tier III hearing"). The only evidence offered against Ortiz was McBride's statement that the confidential informant had accused Ortiz of selling drugs in the prison. Based on this evidence alone, Mara concluded that Ortiz had committed a disciplinary violation and sentenced him to ninety days of solitary confinement in the prison's SHU, as well as loss of packages, commissary, phone, and recreation privileges for that time. Ortiz appealed the decision through the channels established within DOCS for such review.

During the first three weeks of Ortiz's SHU sentence, he asserts, prison officials confined him to his cell twenty-four hours a day. He was not permitted to shower "for weeks at a time," was denied deodorant and toothpaste, was served meals later than other inmates, and "was not given eating utensils, causing plaintiff to eat with the same fingers he was unable to properly wash." First Amended Compl. ¶ 11. Ortiz's clothes were also "purposely drenched with baby oil." Id. Further, according to Ortiz, "[w]hen [he] complained of the inhumane conditions, corrections officers threatened that he would be physically beaten and charged with additional infractions." Id. ¶ 12.

After fifty-seven days in the Arthur Kill SHU, and while his DOCS appeal was pending, Ortiz was transferred to DOCS's Fishkill Correctional Facility. There he was placed in SHU for the remaining thirty-three days of his sentence. Ortiz complains that while in the Fishkill SHU, he was "double-bunked," that is, forced to share the cell, which had only one toilet, with another inmate. According to Ortiz, the inmate with whom he shared his cell posed a physical threat to Ortiz. Ortiz does not assert, however, that he submitted formal DOCS grievances with respect to SHU conditions in either prison.

DOCS's Director of Special Housing/Inmate Disciplinary Program, Donald Selsky, ultimately reversed Ortiz's disciplinary ruling in a document titled "Review of Superintendent's Hearing." It stated, without explanation: "[Y]our Superintendent's Hearing of October 7, 1998, has been reviewed and reversed on December 28, 1998." The ruling came on the ninetieth and final day of Ortiz's SHU confinement.

On July 6, 1999, Ortiz, acting pro se, filed a complaint in the United States District Court for the Eastern District of New York asserting causes of action under 42 U.S.C. § 1983. He alleged that (1) the Tier III hearing, which led to the imposition of a sentence of ninety days in SHU confinement, deprived him of a liberty interest protected by the Fourteenth Amendment of the Constitution without due process of law and (2) the SHU conditions to which he was subjected constituted cruel and unusual punishment in violation of the Eighth Amendment of the Constitution as applied to New York State through the Fourteenth Amendment. He requested a variety of remedies, including compensatory and punitive damages. He also alleged that he had "filed ... grievances concerning this matter" and that "all grievances [had been] denied[.]" Compl. ¶ 4.

The district court appointed counsel for Ortiz. On November 6, 2001, counsel filed a First Amended Complaint on Ortiz's behalf.

The defendants then moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the complaints for failure to state a claim. On March 7, 2002, the district court (Jack B. Weinstein, Judge), ruling from the bench, granted the motion. His ruling is set forth in full in our previous per curiam opinion as follows:

This constitutes my opinion in the case: The Court is compelled to dismiss the case. The main problem that the court saw in the papers was the problem of lack of a test of the veracity of the informer who apparently provided the basis for the complaint by the sergeant. However, there is no point in pursuing that matter since the administrative proceedings within the prison resulted in dismissal of the complaint. So that the plaintiff has obtained all that could be obtained on that issue.

With respect to the conditions within the cramped cell, the Court is compelled under the decisions of the Court of Appeals for the Second Circuit to dismiss those complaints. The Court of Appeals for the Second Circuit requires a very high standard of abuse. It has to be atypical and significant hardship under Colon [v. Howard], 215 F.3d [227] (2d Cir.2000), and other opinions of the Second Circuit.

Moreover, it is very clear that the Second Circuit in general requires special incarceration of more than 101 days. That is Colon, 215 F.3d at 232....

The showering and other personal issues, in connection with other circumstances, may constitute an abusive situation. However, in view of the release from these circumstances within the prison within the 90 days, and dismissal on the main issue, under the cases the Court believes it has no alternative but to dismiss.

The Court of appeals in Neal [v.] Goord, 267 F.3d 116 [2d Cir.2001], required dismissal for failure to exhaust administrative remedies. In this case the exhaustion with respect to the main issue resulted in a favorable decision for the plaintiff. The oral testimony as well as other information before this Court does not make clear any exhaustion with respect to these other issues.

Ortiz, 323 F.3d at 194 (alterations in original). The action was dismissed. The memorandum, judgment, and order of the district court did not state whether the dismissal was with or without prejudice.

Ortiz appealed. In a per curiam opinion, we ordered that appellate counsel be appointed for Ortiz and invited counsel to ask that this case be heard with other pending appeals involving related PLRA issues, id. at 196, which he later did. We identified four issues to be addressed "[i]n addition to any other arguments counsel may choose to raise." Id. They were,

(1) whether Ortiz's proffered evidence that he administratively exhausted his Eighth Amendment claim satisfies the requirements of § 1997e(a); (2) whether § 1997e(a) requires "total exhaustion" and, if so, whether Ortiz may now withdraw any unexhausted claims; (3) whether Ortiz's factual allegations that the conditions of his confinement in SHU were unusually harsh sufficed to raise the question of whether that confinement implicated a constitutionally protected liberty interest so as to preclude 12(b) dismissal; (4) whether Ortiz's complaint adequately pled, or could be amended...

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