Preterotti v. Souliere, Civil Action No. 2:16-cv-72-wks-jmc

• Decision Date: 28 December 2016
• Docket Number: Civil Action No. 2:16-cv-72-wks-jmc
• Court: United States District Courts. 2nd Circuit. District of Vermont
• Parties: John M. Preterotti, Plaintiff, v. Dan Souliere, Defendant.

John M. Preterotti, Plaintiff, v. Dan Souliere, Defendant.

Civil Action No. 2:16-cv-72-wks-jmc

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT

December 28, 2016

REPORT AND RECOMMENDATION

(Doc. 10)

Plaintiff John Preterotti, an inmate proceeding pro se, brings this action under 42 U.S.C. § 1983. He alleges that Defendant Correctional Officer Dan Souliere¹ violated his rights under the Fourth and Eighth Amendments by subjecting him to a "strip search" in front of other inmates during an incident that was recorded by a security camera transmitting footage to "main control." (Doc. 4 at 4-5, ¶ 6.) For relief, Preterotti seeks $60,000 in compensatory damages; $150,000 in punitive damages; $40,000 for his pain and suffering; and $35,000 for his "emotional injuries," including humiliation. (Id. at 6, ¶ 9.)

Preterotti filed his Complaint on March 16, 2016. (Doc. 4.) In response, Souliere filed the pending Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of jurisdiction and failure to state a claim. (Doc. 10.) Therein, Souliereargues as follows: (1) Preterotti has failed to properly exhaust his administrative remedies, as required by the Prison Litigation Reform Act (PLRA), and thus this Court lacks subject-matter jurisdiction to hear his claims (id. at 3-8, 15); (2) Preterotti's claims against Souliere in his official capacity are barred by 42 U.S.C. § 1983 and by sovereign immunity (id. at 9-10); (3) Preterotti has failed to sufficiently allege violations of his Fourth and Eighth Amendment rights (id. at 11-14); (4) Preterotti is not entitled to compensatory damages under § 1983 because he did not suffer a physical injury (id. at 14-15); and (5) Preterotti has not alleged facts sufficient to satisfy the elements of a punitive damages claim under § 1983 (id. at 15). Preterotti has filed a Response opposing Souliere's Motion.² (Doc. 18.)

For the reasons stated below, I recommend that Souliere's Motion to Dismiss (Doc. 10) be GRANTED.

Background

For the purpose of deciding Souliere's Motion, the Court accepts as true all of the factual allegations contained in Preterotti's Complaint (Doc. 4), as summarized below. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

During the relevant period, Preterotti was an inmate with the Vermont Department of Corrections (DOC) at the Northern State Correctional Facility (NSCF) in Newport, Vermont. (Doc. 4 at 4, ¶ 6.) On November 26, 2015, Preterotti was working in the kitchen at NSCF during the Thanksgiving meal. (Id.) Afterward, Preterotti and "the other inmates" were subject to a "pat-frisk" before returning to their units. (Id.) Preterotti joked to Souliere that he had "20 bags of chips" in his pants. (Id.; see also Doc. 4-1 at 5 (referring to "20 bags of potato chips").) In response, Souliere ordered Preterotti to pull down his pants, in the presence of the other inmates, and in front of a camera with a live feed to "main control." (Doc. 4 at 4, ¶ 6.) Souliere then inspected Preterotti's "private area" to determine whether Preterotti had secreted the 20 bags of chips on his person. (Id. at 5, ¶ 6). Preterotti "felt dehumanized" because the "strip search" was conducted in the presence of the other inmates and recorded by the camera. (Id.)

Analysis

I. Standard of Review Under Rules 12(b)(1) and 12(b)(6)

Souliere moves to dismiss Preterotti's Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. 10.) "A case is properly dismissed for lack of subject[-]matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). When moving to dismiss under Rule 12(b)(1), "the defendant may challenge either the legal or factual sufficiency of the plaintiff's assertion of jurisdiction, or both." Robinson v. Gov't of Malay., 269 F.3d 133, 140 (2d Cir. 2001).

In order to survive a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (quoting Iqbal, 556 U.S. at 678); see also Fed. R. Civ. P. 8(a)(2). Two principles guide a plausibility determination: first, though a court must accept as true all factual allegations in the complaint, this requirement "is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.; see also Turkmen v. Hasty, 789 F.3d 218, 233 (2d Cir. 2015). "Second, only a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556). "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

When parties seek dismissal of pro se complaints under Rule 12(b)(6), "courts 'apply[] a more flexible standard to evaluate their sufficiency than we would when reviewing a complaint submitted by counsel.'" Thompson v. Pallito, 949 F. Supp. 2d 558, 571 (D. Vt. 2013) (alteration in original) (quoting Lerman v. Bd. of Elections in City of N.Y., 232 F.3d 135, 140 (2d Cir. 2000)). The basis for this liberal construction is "the understanding that '[i]mplicit in the right of self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training.'" Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (per curiam) (alteration in original)(quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). Nevertheless, a complaint filed by a pro se plaintiff "must state a plausible claim for relief." Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013); see also Thompson, 949 F. Supp. 2d at 571.

II. Failure to Exhaust Under the PLRA

Souliere argues that Preterotti did not properly exhaust his administrative remedies pursuant to the DOC grievance process, and thus his claims are barred by the PLRA and this Court lacks jurisdiction over them under Rule 12(b)(1). (Doc. 10 at 3-8, 15.) The PLRA provides that "[n]o action shall be brought with respect to prison conditions under section 1983 . . . 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." Hernández v. Coffey, 582 F.3d 303, 305 (2d Cir. 2009) (alterations in original) (quoting 42 U.S.C. § 1997e(a)); see generally Ross v. Blake, 136 S. Ct. 1850 (2016).

Exhaustion must be proper—that is, it must "compl[y] with an agency's deadlines and other critical procedural rules . . . ." Woodford v. Ngo, 548 U.S. 81, 90 (2006). In other words, inmates must adhere to the grievance process set out by the institution where they are incarcerated. Jones v. Bock, 549 U.S. 199, 218 (2007) ("[I]t is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion."); see also Gilbeau v. Pallito, Civil Action No. 1:11-CV-232, 2012 WL 2416719, at *4 (D. Vt. May 22, 2012). The Supreme Court has held that the unavailability of administrative remedies is the onlyproper exception to an "inmate's obligation to exhaust." Ross, 136 S. Ct. at 1856.³ An administrative remedy may be unavailable in one of three circumstances: (1) when, notwithstanding regulations or guidance materials, an administrative procedure is "a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates"; (2) when the procedure is "so opaque that it becomes, practically speaking, incapable of use," so that "no ordinary prisoner" could make sense of the process; or (3) when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1859-60.

Administrative exhaustion is "not a jurisdictional predicate," but rather "failure to exhaust is an affirmative defense." Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004), abrogated on other grounds by Ross v. Blake, 136 S. Ct. 1850 (2016). Therefore, Souliere's Motion to Dismiss for failure to exhaust is properly addressed under Rule 12(b)(6), rather than Rule 12(b)(1). See, e.g., Baez v. Bureau of Prisons, Warden, No. 02 Civ. 9216(PKC)DF, 2004 WL 1777583, at *3 (S.D.N.Y. May 11, 2004) (citing cases) ("Although Defendants' argument that [plaintiff] has not fully exhausted his claim does not implicate Rule 12(b)(1), that argument may still be properly considered under Rule12(b)(6)."); Brito v. Vargas, No. 01-CV-7753(FB)(LB), 2003 WL 21391676, at *1 (E.D.N.Y. June 16, 2003) (finding that defendants' Rule 12(b)(1) motion to dismiss for failure to exhaust was "more appropriately addressed under Rule 12(b)(6)").

Under Rule 12(b)(6), the question "is not whether the plaintiff will ultimately prevail, but whether his claim, as pleaded, is sufficient to afford him the opportunity to proceed on the evidence." Baez v. Parks, No. 02 Civ.5821 PKC DF, 2004 WL 1052779, at *3 (S.D.N.Y. May 11, 2004) (citing Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998)). Because failure to exhaust is an affirmative defense, the defendant has the burden "to demonstrate nonexhaustion," and it is "not [the] [p]laintiff's burden to plead exhaustion with particularity." Barnes v. County of Monroe, 85 F. Supp. 3d 696, 722 (W.D.N.Y. 2015); see also Jones, 549 U.S. at 216 ("[I]nmates are not required to specially plead or demonstrate exhaustion in their complaints."); Grullon v. City of New Haven, 720 F.3d 133, 141 (2d Cir. 2013) (same). Accordingly, it is generally inappropriate for a district court to grant a motion to dismiss on failure to exhaust...