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IN the UNITED STATES DISTRICT COURT for the NORTHERN DISTRICT of NEW YORK THOMAS M. ROLAND, III, Plaintiff, Civil Action No. V

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IN the UNITED STATES DISTRICT COURT for the NORTHERN DISTRICT of NEW YORK THOMAS M. ROLAND, III, Plaintiff, Civil Action No. V Case 9:10-cv-00089-MAD-DEP Document 19 Filed 05/24/10 Page 1 of 82 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK THOMAS M. ROLAND, III, Plaintiff, Civil Action No. v. 9:10-CV-0089 (GLS/DEP) FRANK WENZ, T.A.,1 Defendant. APPEARANCES: OF COUNSEL: FOR PLAINTIFF: THOMAS M. ROLAND, III, Pro Se 04-B-2754 Wende Correctional Facility P.O. Box 1187 Alden, NY 14004 FOR DEFENDANT: HON. ANDREW M. CUOMO ROGER W. KINSEY, ESQ. Attorney General of the Assistant Attorney General State of New York The Capitol Albany, NY 12224-0341 DAVID E. PEEBLES U.S. MAGISTRATE JUDGE 1 In plaintiff’s complaint the defendant is identified as “Frank Wench”. Defendant’s moving papers, however, reflect that the correct spelling of the defendant’s last name is “Wenz”. The clerk will therefore respectfully be requested to adjust the official court records in this case to reflect the correct spelling of the defendant’s name. Case 9:10-cv-00089-MAD-DEP Document 19 Filed 05/24/10 Page 2 of 82 REPORT AND RECOMMENDATION Plaintiff Thomas M. Roland, III, a New York State prison inmate who is proceeding pro se and in forma pauperis, has commenced this action pursuant to 42 U.S.C. § 1983 claiming deprivation of his civil rights. In his complaint, plaintiff maintains that during the period of his confinement he was assaulted by the defendant and forced to submit to a drug injection after informing medical personnel at the facility of his desire to ingest the medication being administered orally, claiming both a denial of due process as guaranteed by the Fourteenth Amendment and exposure to cruel and unusual punishment prohibited under the Eighth Amendment. As relief, plaintiff’s complaint seeks compensatory and punitive damages. In response to plaintiff’s complaint the defendant has moved for its dismissal, alleging that plaintiff’s claims are procedurally barred by virtue of his failure to exhaust available administrative remedies before commencing suit.2 Defendant’s motion is premised principally upon information set 2 In his motion defendant also asserts that to the extent the plaintiff may be suing him for damages in his official capacity, such claims are subject to dismissal. Plaintiff’s complaint, though perhaps modestly ambiguous in this regard, does not appear to suggest his intention to name Wenz as a defendant in his official capacity. Any such claim, of course, would be precluded under the Eleventh Amendment. Kentucky v. Graham, 473 U.S. 159, 166-67, 105 S. Ct. 3099, 3105 (1985); see also 2 Case 9:10-cv-00089-MAD-DEP Document 19 Filed 05/24/10 Page 3 of 82 forth in plaintiff’s complaint, in which Roland states that no internal grievance procedure exists at the facility where he was housed at the relevant times and that he therefore did not pursue a grievance with regard to the matters set forth in his complaint, and invites the court to find, based upon a decision in a prior action issued in a distinctly different procedural setting, that a grievance procedure does in fact exist at the facility. In opposition to defendant’s motion, plaintiff has submitted additional materials in which he now claims that he did file a grievance complaining of the conduct forming the basis for his claims in this action. In light of plaintiff’s additional submission and my reluctance to recommend dismissal of plaintiff’s complaint on the scant and equivocal record now before the court, and particularly given the complexity of the exhaustion analysis in light of controlling authority in this circuit, I am recommending that defendant’s motion be denied without prejudice. I. BACKGROUND3 Daisernia v. State of New York, 582 F. Supp. 792, 798-99 (N.D.N.Y. 1984) (McCurn, J.). 3 In light of the present procedural posture of this case, the following recitation is drawn principally from plaintiff’s complaint, the contents of which have been accepted as true for purposes of the pending motion. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200 (2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S. Ct. 1955, 1965 (2007)); see also Cooper v. Pate, 378 U.S. 546, 546, 84 S. Ct. 1733, 1734 (1964). 3 Case 9:10-cv-00089-MAD-DEP Document 19 Filed 05/24/10 Page 4 of 82 Plaintiff is a prison inmate entrusted to the care and custody of the New York State Department of Correctional Services (“DOCS”). See generally Complaint (Dkt. No. 1). While plaintiff is currently designated to the Wende Correctional Facility, located in Alden, New York, it appears that at the times relevant to his claims, though still serving a prison sentence, he was a patient at the Central New York Psychiatric Center (“CNYPC” or “Center”), a facility operated by the New York Office of Mental Health and located in Marcy, New York. Id.; see Decker v. Hogan, No. 9:09-CV-0239, 2009 WL 3165830, at * 1 (N.D.N.Y. Sept. 28, 2009) (McAvoy, S.J.).4 On January 1, 2010, while confined at the Center, plaintiff became involved in an altercation with another patient. Complaint (Dkt. No. 1) § 6. Following the incident plaintiff was placed in a room and asked by defendant Wenz whether he preferred to take a psychotropic drug, which was going to be administered, orally or by injection. Id. After informing Wenz that he desired to take the medication orally, he was assaulted by the defendant in the presence of other workers at the facility, suffering injuries to his back, face, head, and right shoulder. Id. During the course 4 Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff. 4 Case 9:10-cv-00089-MAD-DEP Document 19 Filed 05/24/10 Page 5 of 82 of the incident the plaintiff was forcibly injected with the prescribed medication. Id. II. PROCEDURAL HISTORY Plaintiff commenced this action on January 26, 2010. Dkt. No. 1. In his complaint, which names only Frank Wenz as a defendant, plaintiff asserts two causes of action, one alleging deprivation of due process as guaranteed under the Fourteenth Amendment based upon the forced injection of medicine over his objection, and the second asserting a claim of cruel and unusual punishment in violation of the Eighth Amendment stemming from defendant’s alleged assault. Id., § 7. As relief, plaintiff’s complaint seeks recovery of compensatory damages of $100,000, and an additional award of punitive damages in a like sum. Id. On March 25, 2010, defendant responded to plaintiff’s complaint by moving for its dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. No. 13. In his motion, defendant asserts that plaintiff’s claims in the action are barred by virtue of his failure to exhaust available administrative remedies at the CNYPC before commencing suit. Id. Plaintiff has since responded to defendant’s motion through submission 5 Case 9:10-cv-00089-MAD-DEP Document 19 Filed 05/24/10 Page 6 of 82 of an affirmation and attached exhibit.5 Dkt. No. 17. Defendant’s motion, which is now fully briefed and ripe for determination,6 has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See also Fed. R. Civ. P. 72(b). III. DISCUSSION A. Dismissal Motion Standard A motion to dismiss a complaint, brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, calls upon a court to gauge the facial sufficiency of that pleading, utilizing as a backdrop a pleading standard which, though unexacting in its requirements, “demands more than an unadorned, the-defendant-unlawfully-harmed me accusation” in order to withstand scrutiny. Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555, 127 S. Ct. 1955, (2007)). Rule 8(a)(2) of the Federal Rules of Civil Procedure 5 In his opposition papers plaintiff has requested that the court order the production of documents, photographs, and information regarding the incident which forms the basis for his complaint. Dkt. No. 17. Because issue has not yet been joined, nor has the court issued its standard Rule 16 order in the action, that request is premature. 6 Despite having been afforded the opportunity to submit reply papers, defendant has not done so, and the deadline for filing a reply has now passed. 6 Case 9:10-cv-00089-MAD-DEP Document 19 Filed 05/24/10 Page 7 of 82 requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Id. While modest in its requirement, that rule commands that a complaint contain more than mere legal conclusions; “[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Ashcroft, 129 S.Ct. at 1950. To withstand a motion to dismiss, a complaint must plead sufficient facts which, when accepted as true, state a claim which is plausible on its face. Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (citing Twombly, 550 U.S. at 570, 127 S. Ct. at 1974). As the Second Circuit has observed, “[w]hile Twombly does not require heightened fact pleading of specifics, it does require enough facts to ‘nudge [plaintiffs’] claims across the line from conceivable to plausible.’” In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir.
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