JOSE E. PAULINO, Plaintiff, -v.- AMICUCCI, WARDEN WESTCHESTER COUNTY JAIL, OFFICER BARBIERI, SERGEANT JOHN DOE, CAPTAIN JOHN DOE AND TEN OTHER KNOWN AND UNKNOWN OFFICERS OF THE SO CALLED NINJA TUTTLE SQUAD, Defendants.
02 Civ. 208 (LAP)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2003 U.S. Dist. LEXIS 995
2003 WL 174303
Decided – January 23, 2003
Opinion by Loretta A. Preska, United States District Judge:
Plaintiff Jose E. Paulino brings this pro se action, pursuant to 42 U.S.C. § 1983, against defendants Warden Amicucci, Officer Barbieri, Sergeant John Doe, Captain John Doe and ten other known and unknown officers of the so called “Ninja Tuttle Squad” (collectively, the “defendants”) for damages he sustained on or about January 14, 2000, while he was incarcerated at the Westchester County Correctional Facility in Valhalla, New York. The defendants now move to dismiss the amended complaint pursuant to the Supreme Court’s ruling in Porter v. Nussle, 534 U.S. 516, 152 L. Ed. 2d 12, 122 S. Ct. 983 (2002), which held that an inmate cannot bring an action with respect to prison conditions under Federal law until he first exhausts the administrative remedies available to him. Because plaintiff has not exhausted his administrative remedies, plaintiff’s amended complaint is dismissed without prejudice to renewal upon proper exhaustion of plaintiff’s administrative remedies.
The following is a brief summary of the facts recited by plaintiff in his complaint. On or about January 14, 2000 1 plaintiff was an inmate at Westchester County Jail in Valhalla, New York. (Plaintiff’s Amended Complaint, hereafter “Compl.,” at P IV). According to plaintiff, at approximately 1:00 p.m. on or about that day, in Unit 4NE of the Jail, plaintiff was assaulted and “beaten and tortured physically and mentally” by the correctional officers known as the “Ninja Tuttles.” (Id.). The incident began when plaintiff was watching television in the common area at the jail. (Id.). The air conditioner was on, so plaintiff placed a sheet around his shoulders to keep warm. (Id.). Plaintiff was approached by Officer Barbieri, who instructed him to remove the sheet from his shoulders. (Id.). Plaintiff responded by telling Officer Barbieri that it was cold in the unit and that he did not have any clothing to protect him from the cold air. (Id.). Plaintiff then requested that Officer Barbieri call a sergeant. (Compl. P IV). When the sergeant showed up, instead of speaking to plaintiff to find out what had occurred, the sergeant ordered the entire unit in “lock-in.” (Id.).
Plaintiff alleges that five minutes later, approximately ten correctional officers came to his jail cell and assaulted and beat him in the face, head, arms, lower back and genitals. (Id.). As a result of their conduct, plaintiff sustained injuries which include swelling and pain in his left cheek and the back of his head, pain in his lower jaw when he eats, cuts to his wrists from the tight handcuffs, “strong” headaches, lower back pain and genital pain. (Compl. P IV-A). Furthermore, plaintiff suffers from a “genital medical condition” and continually experiences nightmares as a result of the abuse to which he was subjected. (Id.). Plaintiff asserts that he was seen by a physician’s assistant in the Metropolitan Detention Center in Brooklyn, New York with respect to the incident, but he was administered only a pain reliever for his headaches. (Id.).
Prior to filing the instant action, plaintiff did not present the facts relating to this complaint in accordance with the state prisoner grievance procedure. (Compl. P II.B). According to plaintiff, he was not in the Westchester County Jail, where the incident occurred, for long enough to file a complaint because the United States Marshals removed him before he could initiate any administrative grievance procedure. (Compl. P II.D).
Here, plaintiff does not dispute that he did not exhaust his administrative remedies. (Compl. P II.B; Plaintiff’s Opposition to Defendants’ Motion to Dismiss, hereafter “Pl. Opp.” at 3). Instead, plaintiff makes several arguments for why he should be excused from exhausting his administrative remedies. Plaintiff first insists that because he was removed from the Westchester County Jail on January 19-only five days after the incident-his stay was too short for him to have initiated any grievance procedure. (Pl. Opp. at 3). Second, plaintiff asserts that he was never advised by any staff member of any grievance program or procedure. (Id.). Finally, plaintiff claims that the grievance procedure “would have been futile, my effort would have been worthless and a waist [sic] of time, because there is a big gap between the New York State and/ or Westchester County Jail and the Federal Administrative Remedy procedure.” (Id.).
Nevertheless, the Court dismissed for lack of jurisdiction:
because plaintiff has not exhausted his administrative remedies, his claim should be dismissed for lack of subject matter jurisdiction without prejudice to renewal upon proper exhaustion of those remedies. See Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir. 2002) (dismissal for failure to exhaust administrative remedies should be without prejudice).
Recall similar incident of prison emergency response terms called Ninja Turtles and consider also the character Harry Tuttle from the movie Brazil and Mr. Tuttle from Saved by the Bell.