     15-2534
     Moreau v. Peterson


                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1                 At a stated term of the United States Court of Appeals for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
 3   New York, on the 12th day of January, two thousand seventeen.
 4
 5   PRESENT:
 6               ROSEMARY S. POOLER,
 7               PETER W. HALL,
 8               RAYMOND J. LOHIER, JR.,
 9                     Circuit Judges.
10   _____________________________________
11
12   Emile Moreau (State Prisoner: 04-A-1588;
13   State Prisoner: 04A1588),
14
15                                Plaintiff – Appellant,
16
17                        v.                                                         15-2534
18
19   Den Peterson, et al.,
20                              Defendants – Appellees.
21
22   _____________________________________
23
24
25   FOR APPELLANT:                          Emile Moreau, pro se, Napanoch, NY.
26
27   FOR APPELLEES:                          Barbara D. Underwood, Solicitor General,
28                                           Michael S. Belohlavek, Senior Counsel,
29                                           Philip V. Tisne, Assistant Solicitor General, for
30                                           Eric T. Schneiderman, Attorney General of the
31                                           State of New York, New York, NY.
32
 1          Appeal from a judgment of the United States District Court for the Southern District of

 2   New York (Roman, J.).

 3          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 4   DECREED that the judgment of the district court is AFFIRMED.

 5          Emile Moreau, pro se, appeals from the district court’s dismissal of his 42 U.S.C. § 1983

 6   claims of racial discrimination and retaliation against five defendants in the Department of

 7   Corrections and Community Supervision (“DOCCS”). Moreau’s complaint is liberally read to set

 8   forth six claims. It alleges that DOCCS employees at the Green Haven Correctional Facility’s

 9   GED program discriminated against him on the basis of race and retaliated against him after he

10   filed grievances; that the facility’s superintendent acted with deliberate indifference by refusing to

11   transfer him to a different facility; and that a corrections officer retaliated against him and acted

12   with deliberate indifference by placing him in the same cell block as an inmate who had previously

13   attacked him. We assume the parties’ familiarity with the underlying facts, the procedural history

14   of the case, and the issues on appeal.

15          We review dismissals pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6)

16   de novo. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002); Cayuga Nation v.

17   Tanner, 824 F.3d 321, 327 (2d Cir. 2016). To survive a motion to dismiss under Rule 12(b)(6), the

18   complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

19   Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim will have “facial plausibility when the

20   plaintiff pleads factual content that allows the court to draw the reasonable inference that the

21   defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

22   Although all allegations contained in the complaint are assumed to be true, this tenet is


                                                       2
23   “inapplicable to legal conclusions.” Id.

24          Upon review, we conclude that the district court properly dismissed four of Moreau’s

25   claims for failure to exhaust administrative remedies as required under the Prison Litigation

26   Reform Act (“PLRA”). See 42 U.S.C. § 1997e(a). As an inmate in the custody of DOCCS, Moreau

27   was subject to a three-step grievance process whereby grievances could be filed with a review

28   committee, appealed to the facility superintendent, and then appealed to the DOCCS Central

29   Office Review Committee. 7 N.Y.C.R.R. § 701.5. Moreau did not file grievances for four of his six

30   claims, and is therefore unable to pursue them under the PLRA.1

31          The district court properly dismissed one of Moreau’s remaining exhausted claims, for

32   racial discrimination against defendant Peterson, as untimely. Section 1983 claims in New York

33   are subject to a three-year statute of limitations that runs from the time the “plaintiff knows or has

34   reason to know of the injury giving rise to the claim.” Milan v. Wertheimer, 808 F.3d 961, 963 (2d

35   Cir. 2015) (internal quotation marks and citations omitted). This period is tolled while a plaintiff is

36   “actively exhausting his administrative remedies.” Gonzalez v. Hasty, 651 F.3d 318, 322-24 (2d

37   Cir. 2011). Moreau alleged that a defendant discriminated against him on April 8, 2010, and

38   pursued his administrative remedies for 87 days. The statutory deadline for this claim expired in

39   July of 2013, and Moreau filed his complaint much later, on December 27, 2013.

40          Moreau’s remaining claim, alleging retaliation by three defendants on September 29, 2010,

41   fails for lack of a plausible causal connection between his grievance and the defendants’ alleged

     1
       Although Moreau claims that he was unable to file grievances concerning the subjects of some of
     his claims, this argument appears inconsistent with the fact that he filed grievances for other claims
     in the same time period, and that those grievances were processed fully. Additionally, the materials
     he cites to document his inability to file grievances do not show (or even suggest) that he tried to
     initiate grievances for the claims that the district court dismissed for failure to exhaust
     administrative remedies.

                                                       3
42   retaliation. See Davis v. Goord, 320 F.3d 346, 352–53 (2d Cir. 2003). For example, an exhibit to

43   the complaint contains a statement from the prison system that Moreau would have failed the

44   practice test regardless of his performance on the essay, which was the portion of his test with

45   which the defendants allegedly interfered.

46          We have considered all of Moreau’s arguments and find them to be without merit.

47   Accordingly, we AFFIRM the judgment of the district court.

48                                                FOR THE COURT:
49                                                Catherine O’Hagan Wolfe, Clerk




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