Herbert v. Korines

Background

Jeremiah Folsom Herbert, a prisoner in the custody of the New York State Department of Corrections and Community Supervision, sued Lieutenant Nicholas Korines, Correction Officers David Tragis, Joel Serrano (sued as “Serino”), Christopher Barto, Daniel Murdock, and Superintendent Mark Miller. Herbert proceeded without a lawyer and brought claims under 42 U.S.C. § 1983, alleging retaliation under the First Amendment and constitutionally inadequate treatment and abuse of power under the Eighth Amendment.

Herbert alleged that he was held in an unsanitary prison housing block from October 3 through October 12, 2023. He described feces on the wall, black mold, mildew, an inoperable toilet, and an overflow involving urine, feces, and vomit. He also alleged that correction officers assaulted him on October 4, denied him medical attention, and later assaulted him during a strip search in retaliation for a grievance he had filed. He alleged that the assaults and excessive force continued through October 19, 2023.

Defendants’ Motion

The defendants moved to dismiss the amended complaint under Federal Rule of Civil Procedure 12(b)(1), which concerns the court’s authority to hear a case, and Rule 12(b)(6), which concerns whether a complaint states a legally sufficient claim. They also argued that qualified immunity applied. The court did not reach the jurisdictional or qualified-immunity arguments because it found that the exhaustion issue independently required dismissal.

Exhaustion Analysis

The Prison Litigation Reform Act requires prisoners to complete available prison administrative remedies before filing a federal lawsuit about prison conditions. The court explained that the applicable grievance process had three levels: an initial grievance, an appeal to the facility superintendent, and a final appeal to the Central Office Review Committee.

The court found that Herbert had not completed this process before filing his original complaint. Although the record supported that his grievances reached the superintendent, Herbert did not provide a final Central Office Review Committee decision or facts showing that 30 days had passed after his appeal before he filed suit. The court also found that Herbert did not allege that the grievance process was unavailable because it was a dead end, too confusing to use, or blocked by prison officials.

The court therefore held that Herbert filed the action prematurely. It stated that completing the grievance process after filing the lawsuit generally does not cure the problem.

Disposition

Judge Nelson S. Roman granted the defendants’ motion to dismiss for failure to demonstrate exhaustion of available administrative remedies. The action was dismissed without prejudice for failure to state a claim on which relief can be granted. The court allowed Herbert until September 5, 2025, to file an amended pleading. If he failed to file on time, the dismissal would be deemed with prejudice. The defendants would then have until October 5, 2025, to answer or otherwise respond if Herbert timely amended the pleading.