Ziemba v. Wezner, Docket No. 02-0340.

Citation366 F.3d 161
Decision Date23 April 2004
Docket NumberDocket No. 02-0340.
PartiesDuane ZIEMBA, Plaintiff-Appellant, v. George WEZNER, I/O, John Armstrong, I/O, P. Calcinari, I/O, R. Muccino, I/O, P. Peters, I/O, E. Saundry, I/O, J. Bulger, I/O, T. Torres, I/O, J. Bandzak, I/O, Brian Zawalinski, I/O, Cicero Callender, I/O, Garland Shell, I/O, D.J. Harris, I/O, Sean Cullagh, I/O, William O'Connor, I/O, Jonathan Moore, I/O, All Defendants, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Duane Ziemba, pro se, Somers, CT, for Plaintiff-Appellant (on submission).

Matthew B. Beizer, Assistant Attorney General for the State of Connecticut (Richard Blumenthal, Attorney General, on the brief), Hartford, CT, for Defendants-Appellees (on submission).

Before: WALKER, Chief Judge, VAN GRAAFEILAND and STRAUB, Circuit Judges.


Plaintiff-Appellant Duane Ziemba, pro se, appeals from an order of the United States District Court for the District of Connecticut (Donna F. Martinez, Magistrate Judge) dismissing his 42 U.S.C. § 1983 action on the pleadings pursuant to Fed.R.Civ.P. 12(c) for failing to exhaust his administrative remedies, as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a).

In February 2002, Ziemba filed an amended § 1983 complaint, alleging violations of rights conferred under the Eighth and Fourteenth Amendments of the United States Constitution, as well as Connecticut state law. In the complaint, he alleges the following facts to support his claims: While was incarcerated at Cheshire Correctional Facility, he had filed an emergency grievance requesting that prison officials protect him from his cell mate, Patrick Wright, because Wright had a mental disorder and had a history of assaultive behavior and keeping weapons in his cell. Prison officials took no measures to protect him, and, as a result, on September 9, 1997, Wright stabbed him. After the stabbing, he was placed in a stripped segregation cell, denied medical care, and threatened by a prison official, who also instructed other prison officials not to place any mention of the stabbing on the prison record.

Ziemba further alleges that he was taken to a holding cell at the Middletown Courthouse for a previously scheduled court appearance, at which time the courthouse sheriffs and other officials refused to allow Ziemba to appear in court due to his shocking condition; and that the Middletown Court officials ultimately telephoned Cheshire Correctional Facility in an attempt to assist Ziemba. Upon returning to Cheshire, Ziemba alleges, various officer defendants, in retaliation for the telephone call from Middletown, continued to detain him in segregation and refused him food and medical care.

Ziemba also alleges that prison officials escorted him to an empty shower room on September 12, 1997, and threatened him, intimidated him with police dogs, beat him, and sprayed pepper spray in his eyes and mouth. After the beating, Ziemba alleges, prison officials placed him in four-point restraints on a bed in the segregation unit, where he was denied medical care; the same day, prison officials transferred him to Northern Correctional Facility, where he was given medical attention after being observed by the medical staff.

At his behest, Ziemba's family sent numerous complaints regarding the above-described incidents to John Armstrong, Commissioner of the Connecticut Department of Corrections, which went unanswered and unreturned. Ultimately, his family initiated an FBI investigation.

The State of Connecticut answered Ziemba's amended complaint, asserting, inter alia, that Ziemba had failed to exhaust his administrative remedies, as the PLRA requires. The State then moved for judgment on the pleadings. Ziemba opposed the Rule 12(c) motion, arguing (1) that the State was precluded from asserting the exhaustion defense because prison officials prevented Ziemba from exhausting his administrative remedies by beating him, threatening him, denying him grievance forms and writing implements, and transferring him to another prison; (2) that his complaints to the FBI constituted an informal exhaustion of his administrative grievances sufficient to satisfy the PLRA's exhaustion requirement; and (3) that, in any case, the ongoing FBI investigation rendered his claims non-grievable under Connecticut Department of Corrections Administrative Directive 9.6. On October 29, 2002, the district court granted the State's motion for judgment on the pleadings and dismissed Ziemba's § 1983 action for failure to exhaust. Ziemba filed a timely appeal.


We review a district court's judgment on the pleadings de novo. See King v. Am. Airlines, Inc., 284 F.3d 352, 356 (2d Cir.2002). "In deciding a Rule 12(c) motion, we apply the same standard as that applicable to a motion under Rule 12(b)(6), accepting the allegations contained in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party." Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir.1999).

Under the PLRA, 42 U.S.C. § 1997e(a), "[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." As the Supreme Court clarified in Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002), "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Id. at 532. Following the Nussle decision, we held that "retaliation claim[s] fit[] within the category of `inmate suits about prison life,' and therefore must be preceded by the exhaustion of state administrative remedies available." Lawrence v. Goord, 304 F.3d 198, 200 (2d...

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    • United States
    • U.S. District Court — Southern District of New York
    • 17 d3 Março d3 2010
    ...allegations contained in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party." Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir.2004) (quoting Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir.1999)). C. Pro Se Plaintiffs Where, as here, a plaintiff is procee......
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    • 13 d2 Setembro d2 2005
    ...taking the allegations in the complaint as true and making all reasonable inferences in the plaintiffs' favor. Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir.2004) (per curiam). The plaintiffs raised only state-law claims in their complaint, and the district court understandably, though mistak......
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    • 29 d4 Julho d4 2004
    ...12(b)(6) is the same standard applied to a motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). See, Ziemba v. Wezner, 366 F.3d 161, 163 (2004); Oneida Indian Nation of New York v. City of Sherrill, New York, 337 F.3d 139, 152 B. Negligence 1. Amgen Amgen contends, inter ali......
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    • U.S. District Court — District of Connecticut
    • 24 d5 Junho d5 2005
    ...the Connecticut Constitution, (2) the October 5 Ruling does not take into account the Second Circuit's recent guidance in Ziemba v. Wezner, 366 F.3d 161 (2d Cir.2004), regarding estoppel and exhaustion of administrative remedies under the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1......
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1 books & journal articles
    • United States
    • Notre Dame Law Review Vol. 93 No. 5, May 2018
    • 1 d2 Maio d2 2018
    ...their treatment, including those who use the grievance systems that the PLRA has now made mandatory"). (233) See, e.g., Ziemba v. Wezner, 366 F.3d 161, 162 (2d Cir. 2004) (per curiam) (plaintiff prisoner filed "emergency grievance requesting that prison officials protect him from his cell m......

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