"expeditious" in that it
does not require administrators to respond to complaints filed on ARF's
in any specific time period. Finally, based upon the record before me on
this Motion, it does not appear that ARF complaints are taken seriously.
See Faunce Dep. of Oct. 12, 1999, at 93-94, 111; Aguero Memo of Nov. 21,
1997 to Faunce at Pls.' Ex. 33.
The Handbook's description of the Ombudsman's role fares no better.
Again, the Ombudsman is presented as an optional "means outside of the
institution by which inmate grievances, complaints or suggestions can be
reviewed." Furthermore, the Ombudsman's ability to "make recommendations
for change" to administrative officials does not seem to be the type of
"responsive action" envisioned by the Court in Booth. The Ombudsman's
investigatory powers are limited. See Lebak Dep. at 26-28; Faunce Dep. of
Oct. 12, 1999, at 80. Investigations by the Ombudsman's Officer were met
with resistance from prison administrators, see Rojas Memo of Aug. 15,
1997, at 179; Aguero Dep. at 127-28 ("I was asking or suggesting to
[Assistant Commissioner] Hilton that I was going to do an evaluation as
to my observations, my findings, my recommendations . . . I don't recall
his exact words, but I recall he was not of the opinion that such a
report be written."); or were overwhelmed by the magnitude of the
complaints. See Internal Affairs Investigation Report at 32.
Furthermore, it appears that many of the recommendations made by the
Ombudsman were falling on deaf ears at Bayside. See Faunce Dep. of Oct.
12, 1999, at 93-94, 111; Augero Memo of Nov. 21, 1997 to Faunce, at Pls.'
Accordingly, I conclude that while a grievance procedure contained in a
prison handbook may constitute an "administrative remedy" under the PLRA
even if it was not promulgated pursuant to an administrative notice and
comment procedure, the grievance procedure contained in the Bayside
Prison Handbook was not sufficiently clear, expeditious, or respected to
constitute such an administrative remedy. Neither was the Ombudsman
sufficiently empowered to take responsive action to constitute an
administrative remedy for purposes of the PLRA's exhaustion requirement.
Because I find that there was no administrative remedy available to the
Plaintiffs, I hold that they were not required to exhaust their
administrative remedies before filing suit in this Court. Consequently,
Defendants' Motion to Dismiss Plaintiffs' Sixth Amended Complaint and
Junius Williams's Fifth Amended Complaint for failure to exhaust
administrative remedies shall be denied.
For the reasons set forth above, Defendants' Motion to Dismiss shall be
granted in part and denied in part. Specifically: (1) Defendants' Motion
to Dismiss Plaintiffs' charge of conspiracy pursuant to
42 U.S.C. § 1985(3) in Count IV of the Sixth Amended Complaint and in
Count III of Junius Williams's Fifth Amended Complaint shall be granted
for all Plaintiffs except those enumerated in Part III.A.4 of this
Opinion; (2) Defendants' Motion to Dismiss Plaintiffs' Sixth Amended
Complaint and to Dismiss Junius Williams's Fifth Amended Complaint shall
be denied in all other respects. The Court shall enter an appropriate
form of Order.
This matter having come before the Court on Defendants' Motion to
Dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), Justin T. Loughry, Esq. and
Lawrence W. Lindsay, Esq., LOUGHRY and LINDSAY, LLC, Paul J. Hirsh,
Esq., PAUL HIRSH, P.C., Audrey J. Bomse, Esq., appearing on behalf of
Plaintiffs and Andrew J. Kyreakakis, Esq., AMBRIOSIO, KYREAKAKIS &
DILORENZO, LLP, appearing on behalf of Plaintiff, Junius Williams; Mark
M. Roselli, Esq., KUSNIRIK & FORNARO, appearing on behalf of Defendants;
The Court having considered the moving papers of the Defendants in
support of their Motion to Dismiss, and the papers of Plaintiffs in
opposition to that Motion; and,
For the reasons set forth in the Opinion filed concurrently with this
IT IS, on this 13th day of March, 2003, hereby ORDERED that:
(1) Defendants' Motion to Dismiss Plaintiffs' Charge
of Conspiracy pursuant to 42 U.S.C. § 1985(3), is
GRANTED as to all Plaintiffs except the following:
Tony Bacon; Frederick Brown; Alfonso Torres; Carlos
Martinez; Hamzah Olugbala Abdullah-Jaleel (a.k.a. Todd
Snell Randolph); Charles Anderson; Eugene Brice; David
Brown; Lawrence Casele; Jimmy DeJesus; William
Faccone; Kevin Gaines; David Gill (a.k.a. Kyle
Harding); Raymond Harris; Pedro Hernandez; Michael
Hinderson; Darren Holland; George H. Jenkins; Hampton
Jenks; Gene A. Jones; William Jones; MacArthur Lee;
Angel Leon; Jimmie Lewis, Jr.; Angel Lopez; Gregory
Lynch; Moises Maldonado; Dan McCallum; Donnie
McClendon; Everett McLean; Luis G. Mejias; Henry
Mitchell; John Negron; Joe L. Parks; Richard
Pettigrew; Calvin Pilgrim; Jon Pocknett; Mark
Rawlins; Eddie Rhodes; Fenton Riddick; Cherrod
Roberts; Eric Roberts; Abdul R. Shabazz; Bernard
Short; Stack Stackhouse; Jonathan Sylvester; Ronald
Temple; Alvin Thornton; Walter Weaver; and Junius
(2) Defendants' Motion to Dismiss Plaintiffs' Sixth
Amended Complaint is DENIED in all other respects.