Wing v. Myers

Background

Dusty Alanson James Wing filed a civil-rights complaint under 42 U.S.C. § 1983 against Correction Officer Myers, Sergeants Ryan Bowers and Douglas DePaolo, and inmates Brian Freeman and DJ Frazier. Wing alleged that on October 18, 2018, Freeman and Frazier punched him, Myers also punched him, and Bowers and DePaolo watched without intervening. Wing alleged that the incident occurred after the state defendants told the inmates about a crime of which Wing had been accused. He reported a busted lip and bruises and said medical staff photographed his injuries.

Wing’s complaint gave conflicting information about whether he tried to file a prison grievance. He stated that he did not file one because he feared being beaten again, but also stated that he tried to file one and that the grievance office or grievance official discarded it. The complaint also stated that he was transferred to Sullivan Correctional Facility after the incident.

State Defendants’ Motion

Myers, Bowers, and DePaolo moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that Wing failed to exhaust administrative remedies under the Prison Litigation Reform Act. The court explained that exhaustion is an affirmative defense, meaning the defendants generally bear the burden of proving it, and that dismissal at the pleading stage is proper only when non-exhaustion is clear from the complaint.

The court concluded that Wing had not completed all required levels of the prison grievance process. His complaint was filed only 18 days after the alleged incident, which was not enough time to complete that process. But the court could not determine from the complaint whether administrative remedies were actually available to Wing. His statements about a specific threat that he would be beaten again, a discarded grievance, and his transfer created ambiguity about whether prison officials had prevented him from using the grievance system.

Because the record was not developed enough to resolve that issue, the court denied the state defendants’ motion to dismiss. It ordered the parties to conduct limited discovery, to be completed within 60 days, solely about administrative exhaustion. The discovery was to address whether and when Wing filed a grievance, who made the alleged threat and when, and whether grievance remedies were available at Woodbourne and Sullivan.

Claims Against Freeman and Frazier

The court separately screened the claims against Freeman and Frazier under 28 U.S.C. § 1915(e)(2)(B), which requires dismissal of a qualifying case brought without prepaying filing fees when it fails to state a claim. Section 1983 applies to conduct by a person acting under state law. Because Freeman and Frazier were inmates rather than state actors, the court held that Wing could not pursue his § 1983 claims against them.

Disposition

Judge Karas denied the state defendants’ motion to dismiss and ordered limited discovery on exhaustion. The court dismissed with prejudice Wing’s claims against Brian Freeman and DJ Frazier under § 1915(e)(2)(B), terminated those defendants from the docket, and denied Wing permission to appeal without paying filing fees because the court found that any appeal would not be taken in good faith.