McGee v. McGready

Background

Tony McGee, who was representing himself and had formerly been incarcerated at Sing Sing Correctional Facility, sued under 42 U.S.C. § 1983. His remaining claim was against Corrections Officer Javier Caban. McGee alleged that, during a July 22, 2013 fight in the facility’s mess hall, Caban watched another inmate assault him, said not to stop the fight, and failed to intervene. McGee alleged that he suffered cuts to his mouth, a swollen lip, and facial contusions. He characterized the claim as a failure-to-protect claim under the Eighth Amendment.

The court had already dismissed claims against several other defendants in earlier orders. The motion before it was Caban’s unopposed motion to dismiss the amended complaint for failure to exhaust administrative remedies.

Legal standard

The Prison Litigation Reform Act requires a prisoner to complete available prison administrative remedies before filing a federal lawsuit about prison conditions under § 1983. At the New York Department of Corrections and Community Supervision, the grievance process generally involves filing a grievance with the Inmate Grievance Resolution Committee, appealing to the facility superintendent, and then appealing to the Central Office Review Committee.

Failure to exhaust is an affirmative defense, meaning the defendant generally must establish it rather than the plaintiff having to plead it as part of the complaint. But dismissal under Rule 12(b)(6), the rule for failure to state a legally sufficient claim, is permitted when the complaint itself clearly shows that the plaintiff did not complete the required process. The court also explained that, in this case, it could consider certain materials outside the complaint because the complaint used a standard form addressing exhaustion.

Court’s analysis

McGee’s amended complaint said that he had filed grievances about matters including sick-call requests, lack of protection, and a foreseeable assault. After reviewing the amended complaint and other materials, however, the court relied on its earlier finding that McGee had not filed a grievance concerning the July 22 incident. The court had previously dismissed related Eighth Amendment claims arising from that incident for failure to exhaust.

The court concluded that McGee had not sufficiently alleged exhaustion of administrative remedies for his claim against Caban. It also stated that McGee had abandoned the claim by failing to oppose Caban’s motion. On those grounds, the court dismissed the Eighth Amendment claim against Caban.

Disposition

The court granted Caban’s motion to dismiss. It dismissed McGee’s Eighth Amendment claim against Caban and stated that the case was dismissed in its entirety. The clerk was directed to terminate the motion and the action.