A 42 USC §1983 Win in US District Court EDNY
Mastroianni v. Reilly, Neal and Minetti, 02 Civ. 846 (ADS) (ETB).
A couple of years ago I accepted an assignment to represent a prisoner held at the Nassau County Correctional Center. The client’s claim was that he had a heart attack due to the failure of the jail to administer his heart medicine on any type of a consistent basis.
The client filed a number of grievances about not getting adequate medical care. Each time, he would get a meeting with a grievance officer. They would agree to drop the grievance if he received his medicine and his other needs were addressed. Each time he would get his medicine for a while, only to have it denied again after a week or two. This medicine included his nitroglycerinen, often dispensed to a patient to use as they feel they need it.
After filing the complaint the county and the medical defendants moved to dismiss, as the plaintiff failed to exhaust his administrative remedies. At a hearing held before a US Magistrate, there was testimony that the plaintiff filed his grievances, would have them addressed, thereby settling and withdrawing the grievance, and then after a while the treatments would end. Testimony also showed that when the plaintiff tried to reinstate the grievance he would have to begin the process from scratch. In other words he could have his medicine or his grievance not both.
The Magistrate found that the plaintiff did not exhaust administrative remedies. Plaintiff challenged the findings. Last Month US District Court Judge Arthur Spatt ruled that where the plaintiff was in effect precluded from exhausting administrative remedies .
While acknowledging that a prisoner must exhaust administrative remedies in order to get past the affirmative defense of failure to exhaust, the court cited a recent Second Circuit decision as follows:
However, in certain circumstances, a prisoner’s failure to exhaust available
administrative remedies may be excused. Berry v. Kerik, 366 F.3d 85, 87-88 (2d Cir.
2004).
Citing Hemphill v. N.Y., 380 F.3d 680, 686 (2d Cir. 2004), the court reviewed the factors the court must look at to determine if the prisoner’s failure to exhaust may be excused.
Judge Spatt noted that the court had to determine (1) What administrative remedies were “available” to the plaintiff; (2)If the defendant has waived the non-exhaustion defense by failing to raise or preserve it; or (3) the defendant’s own actions estop them from raising non-exhaustion. Id.
In addition, the court held that “a plaintiff may successfully refute a defendant’s contention that he has failed to exhaust his administrative remedies if he can demonstrate that . . . ‘special circumstances’ justify his failure to comply with this requirement.” Hoover v. Hardman, No. 99 CIv. 1855, 20005 WL 1949890, at * 2 (N.D.N.Y. Aug. 15, 2005) (quoting Hemphill, 380 F.3d at 686).
In the Mastroianni case there was both a failure of the defendant’s to prove plaintiff failed to exhaust administrative remedies and special circumstances. Citing Sultan v. Wright, 265 F.Supp.2d 292 (S.D.N.Y. 2003), the court held that the fact that the defendant’s grievance officer addressed the grievance and promised to correct the problem, negated plaintiff’s need to appeal the grievance to a higher board. It held that :
An inmate is not required under the PLRA to continue to
complain, as here, after his grievance has been
addressed, but the problem has not been corrected.
Marvin v. Goord, 255 F.3d 40, 43 n. 3 (2d Cir. 2001). If
a prisoner had to grieve non-compliance with favorable
decisions under the PLRA, prison officials could keep
prisoners out of court indefinitely by saying “yes” to
their grievances and “no” in practice. Kaplan v. New
York State Dep’t of Corr. Servs., No. 99 Civ. 5856, 2000
WL 959728, at *3 (S.D.N.Y. July 10, 2000); McGrath v,
Johnson, 67 F. Supp. 2d 499, 510 (E.D. Pa. 1999).
As such we are back in court and Nassau County is either going to have to start keeping its promises to inmates or come up with a better way of screwing them out of their day in court.
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1 comment:
Several years ago I represented a plaintiff in a 42 USC 1983 case that concerned the Suffolk County jail not giving inmates their medicine. The judge was Judge Spatt, who seemed to suggest that the case could be settled, and it was. The county ultimately changed their aspirin distribution policy after I presented tape recorded evidence of the jail employee telling an inmate's friend that there were no aspirin available to be given out because the inmates ask for them so frequently "as if they are candy". My client needed aspirin because the jail personnel were not giving him the amount of Vicodin that their chosen doctor presribed for a jailhouse painful finger tip slice-off injury that the guards had caused, requiring a trip to the emergency room. As I understand it, here is the new policy: inmates may have apsirin for free if the jail nurses prescribe it. They can purchase aspirin on purchase days if the nurses do not prescribe it because they do not find a medical necessity to exist, and they can then keep them as "extras" in their lockers, without having to swallow them right away (the former policy prohibited that sort of keeping.) While it may seem stupid "to make a federal case" out of "aspirin", I am glad that we did that. ["Take care of small problems while they are small."]
If you have information as to whether Suffolk is still following the revised policy, I would appreciate it.
Patricia Weiss, Esq. of Sag Harbor
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