THÉRÈSE WILEY DANCKS, United States Magistrate Judge

APPEARANCES: DRAMANE FOFANA
13-A-4005
Plaintiff pro se
Clinton Correctional Facility
P.O. Box 2001
Dannemora, New York 12929 HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224 OF COUNSEL: CHRISTOPHER W. HALL, ESQ.
Assistant Attorney General THÉRÈSE WILEY DANCKS, United States Magistrate Judge

ORDER AND REPORT-RECOMMENDATION

Plaintiff Dramane Fofana has commenced this pro se civil rights action under 42 U.S.C. § 1983 alleging claims for excessive force and failure to intervene in violation of this Eighth Amendment rights against Defendants Sergeant M. Lee ("Lee") and Corrections Officers J. Ingham ("Ingham"), and J. Paterno ("Paterno"). (Dkt. Nos. 1 and 9.) The violation is alleged to have occurred while he was housed at the Ulster Correctional Facility ("Ulster"). Id. Defendants seek summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure based upon Plaintiff's alleged failure to exhaust his administrative remedies prior to commencing the action. (Dkt. No. 20.) Plaintiff has opposed the motion. (Dkt. No. 24.) For the reasons that follow, the Court recommends that Defendants' motion for summary judgment be denied.

I. BACKGROUND

A. Facts

In his amended complaint, Plaintiff has alleged that at around 12:01am on October 26, 2014, he was having a diabetic seizure when confronted by Defendants Lee, Ingham, and Paterno. (Dkt. No. 9 at 2.) The dorm officer had called the Defendants for assistance when Plaintiff was unresponsive to his direct orders. Id. According to Plaintiff, he was handcuffed and dragged and pulled to the infirmary, with Lee assaulting him along the way. Id. When he was seen by the nurse, Plaintiff was on his stomach with his hands cuffed behind his back. Id. When Plaintiff declined a glucose supplement offered by the nurse after his glucose level had been found to be very low, Lee began punching, kicking, and hitting him in the head with his baton. Id. at 3. Defendants Ingham and Paterno allegedly lied about what had occurred. Id. Plaintiff claims that as a result of the assault by Lee, his nose was battered, swollen, and bleeding; his wrists were bleeding and swollen from yanking and pulling of the handcuffs; he had a bleeding gash on the right side of his face and his forehead was swollen from being kicked and punched; the back of his head was swollen, cut, and bleeding; his knees were bleeding from being dragged on the concrete; and he sustained permanent damage to his vision. Id. at 4.

B. Exhaustion of Administrative Remedies

On or about November 5, 2014, Plaintiff filed a grievance with regard to the alleged assault on October 26, 2014. (Dkt. No. 20-2 at 1, 3-5.) The grievance was sent directly to the Superintendent and was denied by the Acting Superintendent at Ulster on November 24, 2014. Id. at 8. Plaintiff's appeal was received by the Central Office Review Committee ("CORC") on December 8, 2014. (Dkt. No. 1 at 18.) CORC issued its decision denying Plaintiff's appeal on February 18, 2015. (Dkt. No. 20-3 at 4.)

Plaintiff's original complaint is dated February 12, 2015. (Dkt. No. 1 at 16.) The envelope containing the original complaint was postmarked February 17, 2015. (Dkt. No. 1-1.) The original complaint was received in the Clerk's Office on February 19, 2015, one day after CORC issued its decision. (Dkt. No. 1.) Plaintiff's amended complaint was filed on June 1, 2015, well after CORC had issued its decision. (Dkt. No. 9.) In seeking summary judgment for failure to exhaust, Defendants rely upon the mailbox rule articulated in Houston v. Lack, 487 U.S. 266 (1988), under which Plaintiff's complaint would be deemed to have been filed on the date it was given to prison authorities for mailing. (Dkt. No. 20-3 at 4.)

II. ANALYSIS

Under the Prison Litigation Reform Act ("PLRA"), "[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).

In order to properly exhaust administrative remedies under the PLRA, inmates are required to complete the administrative review process in accordance with the rules applicable to the particular institution to which they are confined. Jones, 549 U.S. at 218 (citing Woodford v. Ngo, 548 U.S. 81, 88 (2006)). In New York state prisons, DOCCS has a well-established three-step inmate grievance program. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5 (2013). (See also Dkt. 85-6 at 4-5.)

Generally, the Department of Corrections and Community Supervision ("DOCCS") Inmate Grievance Program ("IGP") involves the following procedure for the filing of grievances. First, an inmate must file a complaint with the facility's IGP clerk within twenty-one calendar days of the alleged occurrence. Id. at § 701.5(a) (2010). A representative of the facility's inmate grievance resolution committee ("IGRC") has sixteen calendar days from receipt of the grievance to informally resolve the issue. Id. at § 701.5(b)(1). If there is no such informal resolution, the full Inmate Grievance Resolution Committee ("IGRC") conducts a hearing within sixteen calendar days of receipt of the grievance (Id. at § 701.5(b)(2)), and issues a written decision within two working days of the conclusion of the hearing. Id. at § 701.5(b)(3).

Second, a grievant may appeal the IGRC decision to the facility's superintendent within seven calendar days of receipt of the IGRC's written decision. Id. at § 701.5(c)(1). If the grievance involves an institutional issue (as opposed to a DOCCS-wide policy issue), the superintendent must issue a written decision within twenty calendar days of receipt of the grievant's appeal. Id. at § 701.5(c)(3)(ii). Grievances regarding DOCCS-wide policy issues are forwarded directly to the central office review committee ("CORC") for a decision under the process applicable to the third step. Id. at § 701.5(c)(3)(i).

Third, a grievant may appeal to CORC within seven working days of receipt of the superintendent's written decision. Id. at 701.5(d)(1)(i). CORC is to render a written decision within thirty calendar days of receipt of the appeal. Id. at 701.5(d)(3)(ii).

If a prisoner has failed to properly follow each of the applicable steps prior to commencing litigation, he has failed to exhaust his administrative remedies. Woodford, 548 U.S. at 93. Because failure to exhaust is an affirmative defense, defendants bear the burden of showing by a preponderance of the evidence that a plaintiff has failed to exhaust his available administrative remedies. See Murray v. Palmer, No. 9:03-CV-1010 (GTS/GHL), 2010 WL 1235591, at *4, 2010 U.S. Dist. LEXIS 32014, at *16 (N.D.N.Y. Mar. 31, 2010); Bailey v. Fortier, No. 09-CV-0742 (GLS/DEP), 2012 WL 6935254, at *6, 2012 U.S. Dist. LEXIS 185178, at *14-15 (N.D.N.Y. Oct. 4, 2012) (the party asserting failure to exhaust bears the burden of proving its elements by a preponderance of the evidence).

Receiving a decision from CORC after filing a federal lawsuit does not satisfy the PLRA's requirement that administrative remedies be exhausted before filing suit, and any claim not exhausted prior to commencement of the suit must be dismissed without prejudice. Neal v. Goord, 267 F.3d 116, 122-23 (2d Cir. 2001), overruled on other grounds, Nussle, 534 U.S. 516. The Second Circuit has held that "[s]ubsequent exhaustion after suit is filed . . . is insufficient." Neal, 267 F.3d at 122. Furthermore, a post-exhaustion amendment of the complaint cannot cure an exhaustion defect existing at the time the action was commenced. See Kasiem v. Switz, 756 F.Supp. 2d 570, 575 (S.D.N.Y. 2010) (citing Neal, 267 F.3d at 122). 85-14 at 13-20.)

Defendants acknowledge that CORC issued its decision on February 18, 2015 (Dkt. No. 20-3 at 4), and they do not dispute that Plaintiff's original complaint was not received in the Clerk's Office until the following day, on February 19, 2015. (Dkt. No. 1.) They instead argue that under the mailbox rule articulated in Houston, 487 U.S. 266, Plaintiff's original complaint must be deemed to have been filed no later than the postmarked date of February 17, 2015, the day before CORC issued its decision for purposes of deciding whether he exhausted his administrative remedies. (Dkt. No. 20-3 at 4.)

The Court disagrees. In Houston, a habeas corpus petitioner drafted a pro se notice of appeal twenty-seven days after entry of a judgment dismissing his petition. Houston, 487 U.S. at 268. The petitioner deposited the petition with prison officials for mailing to the District Court. The date of deposit was recorded in the prison log of outgoing mail, but the record did not contain the postmark or any other evidence of when prison officials actually mailed the notice of appeal. Id. The notice of appeal was stamped received thirty-one days after the judgment had been entered, and the Sixth Circuit Court of Appeals dismissed the appeal as jurisdictionally out of time. Id. at 269.

The Supreme Court determined that the time of filing should be the delivery of the notice of appeal to prison authorities and concluded that it had been filed within the requisite time when the petitioner had delivered it to prison authorities for forwarding to the District Court three days before the deadline. Id. at 270. In so doing, the Court noted that a pro se prisoner seeking to appeal is in a unique situation because he "has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay." Id. at 271. The Supreme Court explained that

. . . the policy grounds for the general rule making receipt the moment of filing suggest that delivery to prison authorities should instead be the moment of filing in this particular context. As detailed above, the moment at which pro se prisoners necessarily lose control over and contact with their notices of appeal is at delivery to prison authorities, not receipt by the clerk. Thus, whereas the general rule has been justified on the ground that a civil litigant who chooses to mail a notice of appeal assumes the risk of untimely delivery and filing . . ., a pro se prisoner has no choice but to hand his notice over to prison authorities for forwarding to the court clerk.

The concern over the lack of control an inmate has over the delivery of time sensitive legal mail underlying the Supreme Court's determination in Houston is not present in this case. The clear language of Houston reveals that the Supreme Court's intent in finding the mailbox rule applicable was to protect inmates, and the Court finds nothing in the decision supporting the application of the mailbox rule in a manner that worked to the inmate's disadvantage.

Although Plaintiff appears to have intended to commence his lawsuit before CORC issued its decision on his appeal (see generally Dkt. No. 24), his administrative remedies had unquestionably been exhausted by the time his original complaint was received in the Clerk's Office. Even if the District Court were to apply the mailbox rule and dismiss Plaintiff's lawsuit for failure to exhaust, the dismissal would be without prejudice, and the action could be immediately refiled since the statute of limitations has yet to run on Plaintiff's § 1983 claim. See Neal, 267 F.3d at 122-23 (claim not exhausted prior to commencement of the suit must be dismissed without prejudice). Requiring the Plaintiff to recommence his lawsuit based upon the application of the mailbox rule in this case would therefore almost certainly accomplish nothing more than adding to the administrative burden of the Clerk's Office. Therefore, the Court recommends that Defendants' motion for summary judgment be denied.

ACCORDINGLY, it is hereby

RECOMMENDED that Defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure for Plaintiff's failure to exhaust administrative remedies (Dkt. No. 20) be DENIED; and it is

ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: March 4, 2016

Syracuse, New York

/s/_________

Thérèse Wiley Dancks

United States Magistrate Judge