Opinion
02 Civ. 1560 (PKC)(FM).
May 13, 2004
Christian Rivera, Albion, New York, [Pro Se].
Sheryl Bruzzese, Esq., NYC Law Department, New York, NY, Assistant Corporation Counsel.
REPORT AND RECOMMENDATION TO THE HONORABLE P. KEVIN CASTEL
This pro se civil rights suit is brought by plaintiff Christian Rivera, pursuant to 42 U.S.C. § 1983, to seek redress for certain wrongs that allegedly occurred while he was lodged at Rikers Island (He is now in state custody.) The defendants named in the Amended Complaint ("Complaint") are the New York City Department of Correction ("DOC"), a number of DOC employees, and several DOC facilities. The defendants have now moved, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the Complaint insofar as Rivera has failed to exhaust his administrative remedies or has named as defendants non-suable entities. As set forth in greater detail below, Rivera has not submitted any opposition papers because he agrees that both branches of the defendants' motion are meritorious. The defendants' motion should therefore be granted.
I. Exhaustion of Remedies
"In general, exhaustion of state remedies 'is not a prerequisite to an action under § 1983.'" Heck v. Humphrey, 512 U.S. 477, 480 (1994) (quoting Patsy v. Bd. of Regents of Fla., 457 U.S. 496, 501 (1982)). Prisoner suits are an exception. Pursuant to the Prisoner Litigation Reform Act of 1996, Congress required an inmate seeking to maintain an action challenging prison conditions under Section 1983 first to exhaust all available administrative remedies. See 42 U.S.C. § 1997(e)a. This procedural requirement is mandatory. See Booth v. Churner, 532 U.S. 731, 739 (2001).
Although a defendant may be estopped from requiring a prisoner to exhaust administrative remedies in certain circumstances,see Ziemba v. Wezner, No. 02-0340, 2004 WL 870476, at *2 (2d Cir. Apr. 23, 2004), the defendants in this case have timely asserted the defense through their motion to dismiss. Moreover, as a telephone conference with the Court earlier today confirms, Mr. Rivera agrees that he has failed to exhaust his administrative remedies with respect to any of his claims. Accordingly, the Court must dismiss any claims which could have been the subject of an administrative grievance while he was at Rikers. Pursuant to DOC's Inmate Grievance Resolution Program, the only claims set forth in the Complaint that Mr. Rivera could not grieve are those relating to the alleged excessive use of force. (See Bruzzese Decl. Ex. E at ¶ II.B). Mr. Rivera's remaining claims consequently must be dismissed.
II. Non-Suable Entities
Section 396 of the New York City Charter provides that "[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the [C]ity of New York and not in that of any agency, except where otherwise provided by law." N.Y. City Charter ch. 17 § 396. DOC facilities and DOC itself are consequently not suable entities. See, e.g., David v. G.M.D.C., No. 01 Civ. 6931 (RWS), 2002 WL 31748592, at *3 (S.D.N.Y. Dec. 6, 2002) (dismissing claim against George Motchan Detention Center at Rikers Island as violative of § 396); Sultan v. New York City Dep't of Bldgs., No. 99 Civ. 8615 (LAK), 2000 WL 262923, at *2 (S.D.N.Y. Mar. 7, 2000) (dismissing claims against the New York City Police and Building Departments on same ground); Echevarria v. Dep't of Corr. Servs., 48 F. Supp.2d 388, 391 (S.D.N.Y. 1999) (dismissing claims against DOC); Adams v. Galletta, 966 F. Supp. 210, 212 (S.D.N.Y. 1997) (same; collecting cases). As Mr. Rivera concedes, his Complaint must therefore be dismissed insofar as he has named the Department of Correction or specific facilities as defendants in this case.
Mr. Rivera's complaint could, of course, also be construed to assert that the City of New York itself violated his civil rights. As the defendants correctly observe, however, the City cannot be held liable for any excessive use of force on a respondeat superior theory. See, e.g., Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978); Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir. 1999). To prevail on such a claim against the City, Mr. Rivera therefore would have to "plead and prove three elements: (1) an official policy or custom that (2) cause[d] the plaintiff to be subjected to (3) a denial of a constitutional right." Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983). Since Mr. Rivera does not contend that the City maintained an official policy which gave rise to any of the misconduct that he alleges, naming the City as a defendant on aMonell theory is not a viable option
III. Conclusion
For the foregoing reasons, the defendants' motion should be granted, leaving as part of the Amended Complaint only the excessive use of force claims, and as defendants only the DOC personnel named in the caption.
IV. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties shall have ten days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a) and (e). Any such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable P. Kevin Castel, at the United States Courthouse, 500 Pearl Street, New York, New York 10007, to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. Any requests for an extension of time for filing objections must be directed to Judge Castel. A failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Fed.R.Civ.P. 6(a), 6(e), 72(b).