Terry v. Carter

Background

Kevin Terry was a pretrial detainee in the custody of the New York City Department of Correction at the Vernon C. Bain Center on Rikers Island. He alleged that, for approximately two or three days, he and other inmates in his housing unit lacked toilet paper, soap, and toothbrushes. After one or more inmates raised the issue with Captain Guerra, Terry alleged that the inmates were placed in hand restraints and taken to intake holding cells.

Terry alleged that the holding-cell toilet water was turned off and that he received no food or water for seven to eight hours. He said these conditions caused hunger, thirst, tiredness, nausea, headaches, and psychological harm. Terry signed the complaint on October 6, 2021, one day after the alleged incident. The complaint was delivered to jail officials for mailing on October 12 and received by the court on October 20.

The original complaint involved 25 plaintiffs, but Chief Judge Laura Taylor Swain ordered Terry’s action separated from the other plaintiffs’ cases. Terry proceeded without a lawyer. After the defendants identified three individuals whose names had been inadequately stated, Terry did not amend the complaint within the time ordered by the court. He also did not file an opposition to the motion to dismiss.

Defendants’ arguments and possible claims

The defendants moved to dismiss on two principal grounds: that Terry had not exhausted available administrative remedies as required by the Prison Litigation Reform Act, and that the complaint did not state a claim under the Eighth Amendment. The court noted that the complaint could also reasonably be read, when interpreted generously, to assert a First Amendment retaliation claim based on the alleged transfer to holding cells after complaints about confinement conditions. The court expressly took no position on whether that possible retaliation claim was adequately pleaded.

Exhaustion ruling

The Prison Litigation Reform Act generally requires a person incarcerated in a correctional facility to complete available administrative remedies before bringing a lawsuit about prison conditions. At Rikers Island, the applicable grievance process required several stages of review, including appeals through the facility and central grievance authorities. The court explained that an existing grievance process is not required if it was effectively unavailable—for example, if it was a dead end, too confusing to use, or obstructed by prison officials.

The court concluded that the complaint itself showed Terry had filed too soon. Only 15 days elapsed between the alleged incident and the complaint’s filing, while the grievance process could take 25 days or more even if every step and appeal proceeded immediately. The court inferred that Terry had not exhausted an available process before filing. It also concluded that the allegations about the transfer to holding cells and the prohibition on grievance class actions did not, by themselves, show that the process was unavailable to Terry individually.

Disposition

The opinion states at the outset that the defendants’ motion to dismiss was granted because the failure to exhaust was apparent from the complaint. The court nevertheless gave Terry until February 3, 2023, to submit a letter presenting facts or argument that the grievance process was effectively unavailable to him. The court stated that, if Terry did not submit such a letter, it expected to dismiss the action without prejudice, meaning that the dismissal would not bar a new action after exhaustion. The clerk was directed to terminate the pending motion and mail Terry a copy of the order.