FELIX CRUZ, Plaintiff, -against- DR. BARRY JORDAN, et al., Defendants.



98 Civ. 0363 (AKH)



UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK



80 F. Supp. 2d 109; 1999 U.S. Dist. LEXIS 19683



December 21, 1999, Decided

December 22, 1999, Filed







SUBSEQUENT HISTORY: Subsequent appeal at Cruz v. Jordan, 2004 U.S. App. LEXIS 1663 (2d Cir. N.Y., Feb. 4, 2004)



PRIOR HISTORY: Cruz v. Jordan, 80 F. Supp. 2d 109, 1999 U.S. Dist. LEXIS 11487 (S.D.N.Y., 1999)



DISPOSITION: [**1] Stay of proceedings provided by court's Order of July 28, 1999 dissolved.







COUNSEL: For FELIX CRUZ, plaintiff: Daniel Haym Weiner, Hughes Hubbard & Reed, New York, NY.


Felix Cruz, plaintiff, Pro se, Stormville, NY.


For BARRY JORDAN, Dr., C.O. M. PRUSAK, MR. A.D. MILLER, MS. FISH-GERALD, DR. SELWIN, DR. MAMIS, C.O. MR. M. CORYERS, defendants: Valerie Singleton, Atty General of the State of NY, New York, NY.


For BARRY JORDAN, Dr., GREEN HAVEN C.F., defendants: Dennis C. Vacco, Atty General of the State of NY, New York, NY.



JUDGES: ALVIN K. HELLERSTEIN, U.S.D.J.



OPINIONBY: ALVIN K. HELLERSTEIN



OPINION: [*123]


ALVIN K. HELLERSTEIN, UNITED STATES DISTRICT JUDGE:

On July 28, 1999, I issued an Opinion and Order staying this prisoner's "1983" lawsuit to permit him to exhaust "such administrative remedies as may be available." See Cruz v. Jordan, 80 F. Supp. 2d 109, 1999 U.S. Dist. LEXIS 11487, 1999 WL 557519 (S.D.N.Y. 1999). I so ordered after the New York State Attorney General had represented that administrative remedies were available with respect to plaintiff's allegations of serious, permanent physical injuries caused by defendants' medical indifference. Am. Compl. PP 30, 37; Def. Ltr. [**2] in Response to Court Interrogatories, Dated April 14, 1999.

Defendants now move for reconsideration and renewal of their motion to dismiss, arguing that the Prison Litigation Reform Act ("PLRA") mandates dismissal rather than a stay, that the procedures I suggested upon remand are unavailable and cannot constitutionally be required, and that plaintiff's claims are now time barred. Upon reconsideration, I adhere to my Opinion and Order of July 28, with [*124] certain modifications and additions to my previous rulings. Specifically, I hold:

1. A district court has equitable jurisdiction to stay an action in the context of the particular facts of a particular case, and is not compelled by the PLRA to dismiss it while the prisoner exhausts possibly available administrative remedies. I thus adhere to my previous decision.

2. Plaintiff cannot have been expected to invoke the state's grievance procedures while suffering the direct impact of the medical inattention that caused him to become unconscious from uncontrolled bleeding, and during at least some portion of his hospitalization. Defendants may plead and prove, however, as an affirmative defense, that plaintiff could have improved his health [**3] and physical condition and, consequently, mitigated his damages, if he had availed himself of the state's grievance procedures at some point in his illness.

3. The state, by expressing unwillingness to accept a remand from this court, even though contemplated by the state's regulations, see, Cruz, 1999 WL 557519 at *6, citing N.Y. Comp. Code R. & Regs. tit. 9, § 701.7(a)(1), or to engage in the administrative fact-finding I requested as to how and why plaintiff's injuries occurred and whether and to what extent plaintiff can be made better, or to hold a hearing on the record with counsel present, shows that there are no further available administrative remedies relevant to the cause before me. Accordingly, this case may now proceed in this Court in regular course.


I. A Stay, Rather than a Dismissal, is an Appropriate Remedy in this Case.

Defendants argue that the exhaustion requirement of section 1997e(a) is a jurisdictional prerequisite to suits by a prisoner. Section 1997e(a) provides, "No action shall be brought . . . until such remedies as are available are exhausted."

Section 1997e(a) is binding upon this Court, but its provision begs the [**4] question of what this Court should do in this particular case. There is simply no evidence that Congress intended by section 1997e(a) to remove every aspect of the district court's traditional equity jurisdiction. The case before me presents complicated factual issues: when the prisoner could reasonably have invoked a grievance procedure, whether such invocation could reasonably have been useful or whether it would have been futile, the degree of relative utility and futility, and the like. In the absence of a developed administrative procedure to deal with suits for "1983" damages that appear from the pleadings to be serious and substantial, dismissal would have been an inappropriate, draconian remedy.

Defendants cite Weinberger v. Salfi, 422 U.S. 749, 757, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975), in which the Supreme Court held that language in the Social Security Act mandating the use of administrative procedures is jurisdictional. But comparisons to Social Security law and regulations are inapt. Congress mandated an elaborate and comprehensive administrative scheme to adjudicate cases of entitlement and disability under the Social Security laws. Adjudications [**5] are on the record and counsel is permitted to participate. See 42 U.S.C. § 405. The district court's jurisdiction is to review the record produced by the administrative agency. Section 1983 cases are different. Such cases are tried to a jury under the Civil Rights Law and, as the state's motion for reconsideration makes clear, the state is not willing to apply or adapt its grievance procedures to adjudicate any of the issues raised by plaintiff's complaint of medical indifference causing serious, permanent injuries.

It is for reasons such as this that Weinberger is held not to apply to "1983" cases, even those falling under the PLRA, for, unlike Social Security law and regulations, the section 1997e(a) provision for exhaustion lacks the "sweeping and direct language" of the Social Security law and regulations. Underwood v. Wilson, 151 F.3d 292, 294 (5th Cir. 1998) (citations omitted), [*125] cert. denied, 526 U.S. 1133, 143 L. Ed. 2d 1012, 119 S. Ct. 1809 (1999). As the Fifth Circuit held:


[Weinberger] turned on the fact that cited portions of the statute in question made the administrative decision of the Secretary 'binding," set [**6] forth limited procedures for judicial review, and denied the existence of any civil cause of action arising under the Social Security Act.

In contrast, § 1997e(a) contains no such sweeping and direct language barring federal question jurisdiction under 28 U.S.C. § 1331. Rather than proscribing a cause of action, the Civil Rights Act specifically creates a civil cause of action.


Id.. Other courts of appeal have held similarly. See Rumbles v. Hill, 182 F.3d 1064, 1067-68 (9th Cir. 1999) n1; Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532, 535 (7th Cir. 1999); Wright v. Morris, 111 F.3d 414, 420-21 (6th Cir. 1997); see also Hayes v. N.Y.S. D.O.C. Officers, 1998 U.S. Dist. LEXIS 20073, *20 n.4, 97 Civ. 7383 (MBM), 1998 WL 901730, *6 n.4 (S.D.N.Y. Dec. 28, 1998). n2



n1 Defendants rely on Salisbury Orchards and Almond Processing, Inc. v. Yeutter, 917 F.2d 1190, 1194 (9th Cir. 1990), for the proposition that statutory administrative exhaustion requirements are jurisdictional. To the extent that Salisbury declares this as a general rule, it has been overruled, at least with respect to § 1997e exhaustion, by Rumbles. [**7]




n2 Although the Second Circuit has not yet squarely addressed this question, the recent opinion in Snider v. Melindez, 199 F.3d 108, 1999 U.S. App. LEXIS 32094, *10, 1999 WL 1114693, *3 (2d Cir. 1999), describes the failure to exhaust administrative remedies under the PLRA as a "procedural flaw."


There is no evidence that Congress intended, in amending section 1997e(a), to eliminate the district court's equitable jurisdiction in aid of the Civil Rights Act, 42 U.S.C. § 1983. A prisoner remains entitled to sue for damages when public officials violate his civil rights. The provisions for sua sponte dismissal and dismissals for failure to exhaust administrative remedies introduced by the PLRA were intended to reduce the incidence of frivolous lawsuits that threatened to overwhelm the federal courts. See PLRA, Pub. L. No. 104-134, 110 Stat. 1321 (1996). That Congress provided for such dismissals in lieu of 180 day continuances while prisoners exhausted "such plain, speedy, and effective administrative remedies as are available" does not mean that Congress intended to eliminate [**8] equitable stays where the interest of justice require a stay rather than a dismissal. The state's interpretation of the change in section 1997e(a) provided by the PLRA goes much too far. n3



n3 Defendants' reliance on the concurring opinion in Fair Assessment in Real Estate Association, Inc. v. McNary, 454 U.S. 100, 137, 70 L. Ed. 2d 271, 102 S. Ct. 177 (1981) (Brennan, J., concurring), is misplaced. Fair Assessment involved a 1983 claim on an allegedly unconstitutional tax assessment, and in interpreting specific jurisdictional language in the Tax Injunction Act, Justice Brennan noted: "In 1937 the requirement of exhaustion of state administrative remedies was certainly a mandatory precondition to suit, and in that sense a 'jurisdictional prerequisite.'" Id.. This observation on the status of the federal courts' equity jurisdiction over state tax matters in 1937 has no bearing on the issue before us today. Moreover, Justice Brennan, in arguing that the district court's decision to dismiss for failure to exhaust should be upheld, did not purport to address the question of whether a dismissal, instead of a stay, was required.

While it may be true that "every premature filing" of a suit imposes some burden on defendants, McNeil v. United States, 508 U.S. 106, 112, 124 L. Ed. 2d 21, 113 S. Ct. 1980 (1995), there is no reason to believe that this burden is increased when premature suits are stayed instead of dismissed. At any rate, my task remains to balance the equities in this particular case, and in my previous order I concluded that they militated in favor of a stay.


[**9]

Thus, I hold that the requirement of section 1997e(a), that prisoners must exhaust such administrative remedies as are available, is not a prerequisite to this court's exercise of jurisdiction over prisoners' civil rights cases under 28 U.S.C. § 1331 and 42 U.S.C. § 1983. The court [*126] must evaluate the nature of the administrative remedy that is claimed to be available, in the context of the alleged injury to a prisoner's civil rights, in order to evaluate if a complaint should be dismissed or if, in the exercise of sound judicial discretion, the complaint should be stayed.


II. Defendants' Argument that all Claims of Plaintiff are Time-Barred is Without Merit. Determining What Claims Plaintiff Should Have Exhausted, What Administrative Remedies Were Reasonably Available to Him, and When Plaintiff Should Have Pursued Them, are Issues for the District Court's Determination

Plaintiff alleges that the injuries he suffered from defendants' indifference to his medical needs were irreducibly fixed when those acts occurred. Nevertheless, defendants argue, the state's grievance procedures could have been invoked afterwards, within [**10] 14 days according to the regulations, and even afterwards in the discretion of the Inmate Grievance Program ("IGP") supervisor. See N.Y. Comp. Code R. & Regs. tit. 9, § 701.7(a)(1). Defendants argue that plaintiff can be charged with negligence or deliberate neglect for failure to invoke those procedures, and plaintiff is now time-barred by the 14 day period provided by the regulations. It does not matter, according to defendants, that plaintiff was unconscious, or subject to considerable pain, or in the hospital; he could have grieved that which caused these conditions or his hospitalization.

Again, defendants' arguments go too far. The possibility of invoking administrative procedures after constitutional rights have been violated and injury has been suffered cannot fix that which has occurred. That which may be called a "remedy" cannot be a remedy if repair is no longer possible. A violation of constitutional rights is actionable even if only "nominal" damages are available, see Amato v. City of Saratoga Springs, 170 F.3d 311 (2d Cir. 1999) -- much more so where, as here, plaintiff claims to have suffered serious permanent injuries.

That injuries were suffered [**11] in the past -- even irreducibly suffered -- does not mean that they could not have been made better, or that the state's grievance procedures might not have worked to make them better. In that sense, plaintiff may be charged with negligence or deliberate neglect in not invoking administrative procedures that could have ameliorated his injuries and mitigated his damage. As with any defense of mitigation, defendant has the burden to plead and prove that there were available administrative remedies that it was reasonable for plaintiff to have invoked, and that, had plaintiff invoked such remedies, the proximate result would have been an amelioration of his injuries and mitigation of his damage. n4



n4 In light of my ruling, I need not decide between cases holding that the inability to invoke administrative remedies because of a time-bar does, or does not, make the administrative remedy "available" for the purpose of determining if a prisoner may proceed with his civil rights action. Compare Wright v. Morris, 111 F.3d 414, 417 n.3 (6th Cir. 1997) (holding, in dicta, that a prisoner who was time barred from pursuing administrative remedies was also barred, by the PLRA, from bringing a 1983 suit); with Mitchell v. Shomig, 969 F. Supp. 487, 492 (N.D.Ill. 1997) (holding that a time-barred administrative remedy is not "available" within the meaning of the PLRA), and Graves v. Detella, 1998 U.S. Dist. LEXIS 5517, 96 Civ. 6540, 1998 WL 196459, *2-3 (N.D.Ill. April 17, 1998) (same); see also Hattie v. Hallock, 16 F. Supp. 2d 834, 837 (N.D.Ohio 1998) (expressing unwillingness to adopt the rule suggested in Wright as "harsh," and instead denying plaintiff's motion on other grounds).


[**12]

These issues -- what remedies were available in the context of which injuries, whether such remedies could have ameliorated the injuries that were suffered, when plaintiff should reasonably have invoked any such remedies, and the like -- are questions of fact, relevant to the issue of exhaustion that defendants raise as an affirmative defense. They are triable issues, [*127] to be determined like all other relevant issues, in the context of a civil rights case under 42 U.S.C. § 1983.

Whether the failure to invoke these remedies bars suit under the PLRA, however, presents a different question, one whose answer turns on whether or not the remedies offered by the state were, under the PLRA, "available" to address plaintiff's claims. That question is a legal question, to be answered by the Court. Congress did not define what it meant by "such administrative remedies as may be available". In the absence of a definition in the law being interpreted, the Court must "rely upon traditional methods of statutory construction . . . ." Whitley v. Hunt, 158 F.3d 882, 886 (5th Cir. 1998). In such instances, "it is emphatically the province and duty of the judicial [**13] department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule." Marbury v. Madison, 5 U.S. (1 Cranch)137, 177, 2 L. Ed. 60 (1803) (Marshall, C.J.).

I hold, therefore, that a remedy is "available" or not, under the PLRA, depending on the practical purpose that it can reasonably accomplish. If a remedy can accomplish no practical purpose with respect to a particular claim, it is not "available" to address that claim. See Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998). This does not mean that the remedy offered need be exactly the remedy the prisoner seeks, or even that the remedy offered need be plain speedy and effective. To be "available," the administrative remedy must serve some purpose with respect to the relief plaintiff seeks. As the Second Circuit has recently held, moreover, it is the duty of the court, and not any administrative agency, to determine whether, and to what extent, and at what period of time, the state's administrative procedures could have served such a practical purpose. See Snider, 1999 WL 1114693 at *5 ("Whether an administrative [**14] remedy was available to a prisoner in a particular prison or prison system, and whether such remedy was applicable to the grievance underlying the prisoner's suit, are not questions of fact. They either are, or inevitably contain, questions of law.").


III. There are No Administrative Remedies Available to Plaintiff, and this Matter May Proceed to Trial

As noted at the outset, the New York State Attorney General had previously represented, in answering my interrogatories, that there were available administrative remedies capable of addressing the issues needing adjudication in this case. See Def. Ltr. in Response to Court Interrogatories, Dated April 14, 1999. I believe, moreover, that a reasonable interpretation of the New York State Inmate Grievance Program supports the availability of the types of administrative procedures I suggested be accorded plaintiff on remand in my previous order. See N.Y. Comp. Codes R. & Regs., tit. 7, § § 701.1 - 701.16 (1995). Thus the IGP provides for a formal hearing process if the dispute in question cannot be resolved "informally," see id. § 701.7(a)(4), and the procedural rules contemplate that an inmate may have an "advisor" [**15] represent him at this hearing. Id. § 701.7(a)(4)(iv). n5 The IGP rules further provide that the committee presiding over this hearing shall issue a "written decision, including the reasons therefore [sic] . . . ." Id. § 701.7(a)(4)(v). Finally, the IGP rules mandate that complete grievance records be kept for three years, and that such records comprise "the original grievance, responses from each level of review, investigations, referenced documentation, and verification of implementation when appropriate." Id. § 701.10(b)(1).



n5 While a subsequent rule defines "advisor" as "a staff member or another inmate of [the grievant's] choosing," id. § 701.10(a), nothing in this language indicates that this definition is intended to be exclusive, or that legal counsel may not serve as the advisor.


[*128] It was against the backdrop of the Attorney General's representations, and the IGP rules, that I directed that plaintiff be given an administrative hearing at which a transcript record would be made, [**16] and at which plaintiff would be permitted to have the assistance of counsel. If such an evidentiary hearing were held, a meaningful administrative investigation of plaintiff's grievance would have been had, and the benefits to both plaintiff and this Court in adjudicating plaintiff's claims would be manifest. By providing for detailed fact-finding and the development of an evidentiary record, administrative procedures can streamline the adjudicative process and materially aid the adjudication required in courts of law. See Bastek v. Federal Crop Ins. Corp., 145 F.3d 90, 94 (2d Cir. 1998), cert. denied, 525 U.S. 1016, 142 L. Ed. 2d 448, 119 S. Ct. 539 (1998). Indeed, as I noted in my previous opinion, the legislative history of the PLRA indicates that a desire to assist courts in this fashion was one of the motivations behind the act. See Cruz, 1999 WL 557519 at *4. Administrative procedures such as those I have described would provide much practical assistance in the adjudication of plaintiff's claims for money damages, and I thus held that they were an available remedy under the PLRA, and that exhaustion was therefore required.

The procedures I suggested, moreover, [**17] are widely available in various administrative contexts under both federal and state law. The detailed procedural protections under the Social Security Act, for example, have already been noted, and the Administrative Procedure Act, 5 U.S.C. § § 551-559, generally provides that adjudicative hearings conducted by agencies under federal law shall be on the record and allow for the assistance of counsel. New York State similarly provides for such procedures in diverse administrative contexts. Worker's Compensation hearings, for one instance, allow for the assistance of counsel, see N.Y. Comp. Codes R. & Regs. tit 12, § 300.17, and a "stenographic record of the proceedings" is made. Id. § 300.9. Unemployment insurances hearings, as another example, also allow for counsel and a "verbatim" record. n6 Id., § 461.4.



n6 The Attorney General's argument that my order of July 29, 1999 imposes improper and unconstitutional requirements on the state administrative process is hard to understand. First, I did not require it. It is for the state to decide if it wants to have an administrative fact-finding process. Second, the procedures that I suggested are, as discussed above, normal administrative procedures. In any event, the issue has become academic in light of the Attorney General's representation in its motion for reconsideration that proper fact-finding procedures in relation to completed acts are not available.


[**18]

My remand, then, was predicated on the understanding that similar procedures were available or could easily be made available under the IGP. Remand from the courts is clearly contemplated by the procedural rules of the IGP, which allow the IGP supervisor to toll the 14 day limitations period on grievances for circumstances such as "referrals back to the IGP by the courts." N.Y. Comp. Codes R. & Regs. tit 9, § 701.7(a)(1). Nevertheless, the New York Attorney General now insists that formal hearing procedures involving counsel and a transcript record are not available under the IGP and cannot reasonably be made available. The Attorney General maintained at oral argument that the remedies offered by the IGP were forward looking and remedial only, in the sense of allowing for the discipline of malfeasant prison staff or the provision of better medical care in the future. See Tr. of Oral Arg. dated September 29, 1999, pp. 5-14. None of these limitations were noted in the defendants' original motion to dismiss, or in the letter they sent in response to Court interrogatories on the availability of administrative remedies.

Under these circumstances, I conclude that the administrative [**19] remedies offered under the IGP, as limited by the Attorney General, can serve no practical purpose with respect to plaintiffs allegations of completed and irreducible medical injuries. [*129] They do not provide for monetary relief; they are not intended to be adjudicative in nature; they do not provide for the development of a meaningful administrative record; and they do not allow counsel to participate. Regarding past and irreducible injuries, the IGP procedures are an empty formality, and as such are not an "available" administrative remedy under the PLRA. Remand to the IGP at this point can serve no useful purpose, and this matter may thus proceed to discovery and trial.


IV. Conclusions

For the foregoing reasons, I conclude that there are no administrative remedies "available" for exhaustion, and that plaintiff's case may proceed to discovery and trial. If plaintiff failed to exhaust administrative remedies and that failure exacerbated the damages plaintiff claims to have suffered, or rendered the amelioration thereof impossible, defendants may raise that issue as an affirmative defense, and evidence may be taken with respect to that issue. In light of defendants' report [**20] that there are no further remedies for plaintiff to exhaust, the stay of proceedings provided by my Order of July 28, 1999 is dissolved, and the parties may proceed in this Court in the ordinary course.

Pursuant to Federal Rule of Civil Procedure 16, the parties are directed to appear before the Court for a case management conference on January 19, 2000, at 4:30pm to regulate further proceedings in this matter.

SO ORDERED.


Dated: New York, New York

December 21, 1999

ALVIN K. HELLERSTEIN, U.S.D.J.