Opinion
02 Civ. 7089 (SAS).
August 20, 2004
Kenyaitta Benjamin Foreman, Columbus, Ohio, Plaintiff (Pro Se).
Nicola N. Grey, Assistant Attorney General, New York, New York, for Defendants.
OPINION AND ORDER
Kenyaitta Benjamin Foreman, proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983, alleging violations of his federal constitutional rights. Foreman asserts that approximately fifty defendants — including the top management, supervisors, officers and employees of the New York State Department of Corrections ("DOCS") — violated his rights while he was incarcerated at Green Haven Correctional Facility ("Green Haven") in Dutchess County, New York. Defendants moved to dismiss plaintiff's Amended Complaint on the grounds that: 1) it failed to meet the basic requirement of Rule 8 of the Federal Rules of Civil Procedure; and 2) plaintiff failed to exhaust administrative remedies in accordance with the Prisoner Litigation Reform Act (" PLRA").
In an Opinion and Order dated March 2, 2004, this Court denied defendants' motion to dismiss based on Rule 8, having found that plaintiff sufficiently pled certain claims enumerated "Claims Allowed." See Foreman v. Goord, No. 02 Civ. 7089, 2004 WL 385114 (S.D.N.Y. Mar. 2, 2004). Plaintiff adequately pled six Eighth Amendment claims, one Sixth Amendment Claim, two First and Fourteenth Amendment Claims, one First Amendment claim, one Fourth Amendment claim, and two Fourteenth Amendment claims. See id., Claims Allowed Table. In addition, defendants' motion to dismiss for failure to exhaust administrative remedies was converted to a motion for summary judgment. Defendants submitted evidence regarding plaintiff's failure to exhaust administrative remedies as to the surviving claims. Plaintiff did not oppose the motion. For the following reasons, all but one of plaintiff's claims are unexhausted and therefore dismissed.
Plaintiff failed to state a claim against the following defendants who were previously dismissed from this lawsuit: Selsky, Ollerenshaw, Morton, Butenhoff, two unnamed PSU Unit Chiefs, Thompson, Ward, Mapes, Russett, Hormozy, Ingenito, Schnieder, Totten, Schearing, Haponick, Tillotson, Demunda, Sarles, Lawyer, Schwartzman, Proper, Elcox, Mills, Centanni, Tierney, Braun, Challard, Lindsay, Meg, and Huttel. In addition, the following defendants were previously dismissed because they were never served: Figueroa, Richards, Thatcher, Absinni, Thacker, Corbell, McClaine, Lyder and Vinson. See Foreman, 2004 WL 385114, at *3.
Specifically, defendants allegedly violated plaintiff's constitutional rights by subjecting him to excessive force and denying him medical care, denying him mail, access to legal material, and access to the courts, seizing his legal materials, subjecting him to unlawful confinement, and denying him the right to call a witness at a disciplinary hearing.
Although plaintiff did not formally oppose defendants' motion, he did submit an unsolicited response to this Court's Opinion and Order in the form of a letter dated March 31, 2004. In that letter, plaintiff states that for the thirteen surviving claims, he appealed his grievances to the Superintendent and further appealed to the Central Office Review Committee. Plaintiff's letter does not include any supporting documentation much of which, plaintiff contends, was lost in his move from New York to Ohio.
I. LEGAL STANDARDS
A. Summary Judgment
Summary judgment is appropriate if the evidence of record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "An issue of fact is genuine `if the evidence is such that a jury could return a verdict for the nonmoving party.'" Overton v. New York State Div. of Military and Naval Affairs, 373 F.3d 83, 89 (2d Cir. 2004) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). "A fact is material for these purposes if it `might affect the outcome of the suit under the governing law.'" Id. (quoting Anderson, 477 U.S. at 248).
The movant has the burden of demonstrating that no genuine issue of material fact exists. See Powell v. National Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004). In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, it "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), and it must "come forward with `specific facts showing that there is a genuine issue for trial.'" Powell, 364 F.3d at 84 (quoting Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993)). In determining whether a genuine issue of material fact exists, courts must construe the evidence in the light most favorable to the non-moving party and draw all inferences in that party's favor. See Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004).
When the non-moving party "`chooses the perilous path of failing to submit a response to a summary judgment motion, the district court may not grant the motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial.'" See Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (quoting Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001)). If the movant does not meet its burden of production, then the court must deny summary judgment even if the non-movant does not oppose the motion. Id. (citing Amaker, 274 F.3d at 681). Moreover, the court may not rely solely on the movant's statement of undisputed facts contained in its Rule 56.1 statement. See id. The court must be satisfied that the movant's assertions are supported by the evidence in the record. See id. (citing Giannullo v. City of N.Y., 322 F.3d 139, 140 (2d Cir. 2003)).
B. Exhaustion
The United States Supreme Court has held that the PLRA's "exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances of particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). Congress enacted the PLRA in an effort to improve prison conditions by fostering an internal grievance system. Indeed, "courts have interpreted the provision to require complete exhaustion in accordance with institutional procedures." Graham v. Cochran, No. 96 Civ. 6166, 2002 WL 31132874, at *16 (S.D.N.Y. Sept. 25, 2002).
The PLRA's exhaustion requirement directs that:
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.42 U.S.C. § 1997e(a).
In New York, inmates can file internal grievances on practically any issue affecting their confinement, including claims of excessive force and deliberate indifference to serious medical needs. See N.Y. Correct. Law § 139 (McKinney 2003) (authorizing inmates to file grievances). DOCS has established a grievance program with specific procedures which must be followed in order for a prisoner to exhaust his administrative remedies. See Sulton v. Greiner, No. 00 Civ. 727, 2000 WL 1809284, at *3 (S.D.N.Y. Dec. 11, 2000); Petit v. Bender, No. 99 Civ. 969, 2000 WL 303280, at *2-3 (S.D.N.Y. Mar. 22, 2000). DOCS grievance procedures require that an inmate submit a complaint to the Grievance Clerk within fourteen calendar days of an alleged occurrence. See 7 N.Y.C.R.R. § 701.7(a)(1). After the complaint is filed, there is an informal resolution process whereby representatives from the Inmate Grievance Review Committee ("IGRC") have seven days to resolve the issue. See 7 N.Y.C.R.R. § 701.7(a)(3). If there is not an informal resolution, a hearing must be held before the full IGRC. See 7 N.Y.C.R.R. § 701.7(a)(4). The result of the hearing is appealable to the Superintendent of the facility, see 7 N.Y.C.R.R. § 701.7(b), and then, ultimately, to the Central Office Review Committee ("CORC"). See 7 N.Y.C.R.R. § 701.7 (c). See also Vasquez v. Artuz, No. 97 Civ. 8427, 1999 WL 440631, at *5 (S.D.N.Y. June 28, 1999).
Thus, for an inmate to exhaust his administrative remedies in New York State he must appeal all the way to the CORC. See Sulton, 2000 WL 1809284, at *4 (dismissing medical indifference claim where prisoner failed to appeal to the CORC); Petit, 2000 WL 303280, at *3 (prisoner who only partially complied with the grievance procedures failed to exhaust his administrative remedies); Santiago v. Meinsen, 89 F. Supp.2d 435, 441 (S.D.N.Y. 2000) (prisoners must challenge the conditions of their confinement through the highest level of available administrative avenues prior to filing suit).
Moreover, exhaustion is required as to each individual defendant named in a prisoner's federal complaint. In Brewer v. Jones, No. 02 Civ. 3570, 2004 WL 235269 (S.D.N.Y. Feb. 5, 2004), the court addressed the "necessity of filing grievances against each defendant for the actions alleged in the complaint. Id. at *4 (emphasis in original). There, plaintiff's section 1983 complaint named additional defendants not mentioned in the grievance he filed. See id. at *2. The court dismissed the claims against these additional defendants. See id. at *3.
Plaintiff now makes specific allegations against specific individuals, which were capable of having been investigated and addressed in DOCS grievance procedures. However, DOCS was never afforded the opportunity to consider, and potentially resolve, these matters prior to the commencement of litigation.
Because plaintiff failed to administratively exhaust his claims against defendants . . . those claims must be dismissed without prejudice, as required by PLRA section 1997e(a).Id. See also Moulier v. Forte, No. 02 Civ. 2148, 2003 WL 21468612 (S.D.N.Y. June 25, 2003) (dismissing complaint where plaintiff's grievance failed to refer to any of the defendants named in his complaint).
II. DISCUSSION
1. Eighth Amendment Claims
A. Plaintiff's Surviving Claims a. May 22, 2001 Incident
Plaintiff alleges that on May 22, 2001, defendants Montegari, Trombley and Welch questioned him about the "Central Intelligence Agency." See Amended Complaint ("Cmpl.") ¶ 30. Plaintiff further alleges that while being handcuffed, these defendants verbally threatened and punched him in the "lower back causing extreme pain due to plaintiff's kidney problems of the liver" and a "prior injury." Id.
Plaintiff contends that he filed a grievance after the alleged May 22, 2001 incident against Montegari, Trombley, and Welch. However, there is no record of plaintiff having appealed a grievance to CORC regarding his May 22, 2001 allegation of excessive force. See Declaration of Thomas Eagen, Director of DOCS Inmate Grievance Program ("Eagen Decl."), Ex. A. Therefore, plaintiff's excessive force claim against Montegari, Trombley, and Welch is dismissed.
Exhibit A shows the grievances plaintiff appealed to the CORC from July 10, 2001 through August 28, 2002.
Plaintiff also claims that as a result of the May 22, 2001 alleged use of excessive force, he wrote a letter to defendant Thornton on or about May 27 to June 7, 2001 requesting medical care for the injuries he received as a result of the excessive force used on May 21, 2001. See id. ¶ 37. Because there is no record of any grievance filed against Thornton regarding the denial of medical care, this claim is also dismissed.
b. July 7, 2001 Incident
Plaintiff alleges that on July 7, 2001, he was ordered to step out of his cell by defendant Henschel after a verbal altercation. See Cmpl. ¶ 51. Plaintiff claims when he reached the first floor landing, defendant Norton ordered plaintiff to "place his legal work and photos on the A Station Post Box." Id. ¶ 55. Plaintiff further claims that without a sergeant present, Henschel began to roughly pat frisk him while defendants Daly and Norton held his arms. See id. ¶ 57. Plaintiff alleges that while being pat frisked, Henschel verbally threatened him and "chopped the plaintiff in his scrotum sack and caused him injury to keel over." Id.
Plaintiff claims that Norton, Daly, and Henschel forced plaintiff to the ground where he was kicked and stomped in the head, lower and upper back, and stomach by these defendants and another unnamed officer. See id. ¶¶ 57, 58. According to plaintiff, Henschel, Norton, and Daly applied tight handcuffs to his wrists which caused him "lacerations and altered plaintiff's sensitivity in his nerves of the plaintiff's wrists." Id. ¶ 64. Plaintiff also alleges that after the incident, he was escorted to the hospital by defendant Mitchell. See id. ¶ 65. Plaintiff further alleges that while being escorted to the hospital he was "again assaulted by defendant Mitchell" and another unnamed officer. See id. ¶ 66.
On July 10, 2001, plaintiff filed Grievance No. GH-47043-01 regarding the July 7, 2001 incident. See Eagen Decl., Ex. B. In grievance GH-47043-01, plaintiff named Henschel, Daly, and Norton, claiming that these defendants used excessive force against him. Plaintiff appealed grievance GH-47043-01 to the CORC, thereby exhausting administrative remedies as to these defendants. Plaintiff's excessive force claim against Henschel, Norton and Daly cannot be dismissed for failure to exhaust administrative remedies.
Exhibit B includes copies of the following grievances: GH-47043-01; A-44027-02; GH-47633-01; A-43732-02; GH-47458-01; GH-47392-01; GH-47102-01; A-44012-02; A-44166-02; GH-47402-01; GH-471142-01; GH-47506-01; and GH-48924-02.
Without naming an officer, plaintiff also alleged in grievance GH-47043-01 that he was beaten while being escorted to the prison hospital. In response to plaintiff's grievance, Sergeant Ingenito noted that defendant Mitchell escorted plaintiff to the prison hospital in his presence and stated that plaintiff was not beaten. Because plaintiff failed to name Mitchell in this grievance, his excessive force claim against this defendant is dismissed.
Plaintiff also claims that following the July 7, 2001 incident, he was denied medical attention by defendants Rodas, Greiner and Goord, who denied him x-rays and other medical treatment. There is no record that plaintiff exhausted his administrative remedies by appealing a grievance to the CORC against Rodas, Greiner and Goord. Plaintiff's deliberate indifference claim against these defendants is therefore dismissed.
c. Other Incidents After July 7, 2001 and the May 2002 Incident
Plaintiff claims that sometime after July 7, 2001, he was attacked a "second and third time" by unidentified correctional officers. See Cmpl. ¶ 87. Plaintiff claims that one unidentified officer punched him in his lower back. See id. Plaintiff also claims that in May of 2002, as a result of a Central Intelligence Agency snitch rumor, he was badly beaten by defendant Norton and Keheler, who is not a named defendant. See id. ¶ 101.
Besides the July 7, 2001 incident, the record reflects that plaintiff appealed one other excessive force grievance to the CORC, Grievance No. GH-48924-02, where he complained he was assaulted by staff on April 9, 2002. In this grievance, plaintiff does not name Norton, nor does he complain that Norton engaged in any improper conduct. In fact, the grievance attributes the April 9, 2002 improper conduct to an unnamed individual later identified as non-defendant Keheler. Plaintiff's excessive force claims against unidentified correctional officers and Norton are therefore dismissed.
2. First and Fourteenth Amendment Claims
Plaintiff claims that certain defendants violated his First and Fourteenth Amendment rights by tampering with his mail, denying him legal material and interfering with his access to courts. Specifically, plaintiff claims that from May through June 2001, Daily interfered with his access to legal material by refusing to help him "obtain law library services." Cmpl. ¶ 14. Plaintiff also claims that Greiner interfered with his access to legal materials and to the courts in July and August of 2001. See id. ¶¶ 81, 86.
Plaintiff appealed several grievances to the CORC regarding his mail issues including Grievance Numbers A-44027-02 and GH-47142-01. See Eagen Decl., Ex. B. In these grievances, plaintiff claims he was denied his mail and access to the law library. Plaintiff fails, however, to name any of the defendants in Grievances A-44027-02 and GH-47142-02. See id. Plaintiff also filed Grievances No. GH-47458-01, GH-473892-01, A-44012-02, A-44166-02, GH-47142-01, which also allege various improprieties regarding his mail. See id. Again, plaintiff failed to identify any of the defendants in these grievances. See id.
Plaintiff appealed Grievance No. GH-47633-01 to the CORC. GH-47633-01 alleged that Lyder, not a named defendant, denied him access to the courts. In this grievance, plaintiff does not name any of the defendants. See id. Plaintiff also filed Grievance No. A-43732-02, claiming he was being denied access to court because his mail was not being delivered. See id. Plaintiff also filed Grievance No. GH-47506-01, complaining he was being denied legal supplies such as blank white paper in order to do his legal work. See id. Again, plaintiff fails to name any defendant in these grievances. Because plaintiff fails to attribute his mail tampering and court access problems to any of the named defendants, these claims are hereby dismissed.
3. Fourth Amendment Claim
Plaintiff alleges that on July 7, 2001, after being escorted out of his housing company, Norton ordered plaintiff to "place his legal work and photos on the A Station Post Box." Cmpl. ¶ 55. Plaintiff also alleges that defendant Daly searched the property. See id. Plaintiff further alleges that his legal work and photos were seized by Henschel, Norton, and Daly. See id. ¶¶ 62-63.
Plaintiff claims that prior to being assaulted on July 7, 2001, he filed grievances against Henschel, Norton, and Daly regarding the seizure of legal work and photographs. In Grievance No. GH-47043-01, plaintiff requests the return of this property. See Eagen Decl., Ex. B. Plaintiff states that his legal work and photographs were placed in a lock box, but he does not name anyone, nor does he claim that Henschel, Norton or Daly were responsible for his missing property. See id. Therefore, plaintiff has failed to exhaust his administrative remedies with regard to his Fourth Amendment claim, which is dismissed.
4. Fourteenth Amendment Claims
Plaintiff claims his Fourteenth Amendment rights were violated when defendant Keyser violated his due process rights during plaintiff's disciplinary hearing and unlawful confinement. Plaintiff claims that on May 27, 2001, Keyser conducted a Tier II and Tier III disciplinary hearing. See Cmpl. ¶ 38. Plaintiff also claims that Keyser refused to investigate plaintiff's claims regarding visitation and mail privileges. Plaintiff further claims that Keyser failed to produce witnesses or documentary evidence at the hearing. See id. ¶ 39. Plaintiff alleges that Keyser rendered his determination of the disciplinary action on June 7, 2001. Plaintiff also alleges that after filing a grievance, plaintiff was found not guilty. Id. ¶ 40.
A review of the records shows plaintiff failed to appeal a grievance to the CORC regarding any improper conduct by Keyser. See Eagan Decl., Exs. A B. Therefore, plaintiff failed to exhaust his administrative remedies as to Keyser and his Fourteenth Amendment claims are dismissed.
5. Sixth Amendment
Plaintiff claims that Hearing Officer Maddox denied him notice and the right to present a witness at a disciplinary hearing held on July 12, 2001. Cmpl. ¶ 69. Plaintiff alleges that a porter was a "witness of the incident." Id. Plaintiff also alleges that he requested that the porter be called as a witness and that Maddox denied his request. See id. ¶¶ 69, 74.
A review of the records shows that plaintiff sent an appeal letter to Donald Selsky, Director, Special Housing, Inmate Disciplinary Program, see Declaration of Nicola Grey, Ex. A, the result of which was a reduction in the penalties previously imposed. See id. However, defendants have not submitted the actual appeal letter which may, or may not, have mentioned plaintiff's complaint against Maddox. As the record stands, plaintiff has failed to show that he exhausted his administrative remedies against Maddox. Therefore, plaintiff's Sixth Amendment claim is dismissed. B. Defendants Goord and Griener Were Not Personally Involved in the Alleged Constitutional Violations
If plaintiff could show that his appeal letter to Selsky described his complaint against Maddox, his obligation to exhaust administrative remedies would be fulfilled and this claim would be reinstated. See Johnson v. Testman, No. 02-0145, 2004 WL 1842669, at *4 (2d Cir. Aug. 18, 2004) (remanding case so district court could consider whether complaining about a corrections officer through a disciplinary appeal was sufficient to comply with the Bureau of Prisons' Administrative Remedy Program).
Plaintiff claims that defendants Goord and Greiner violated his Constitutional rights. Specifically, plaintiff claims that Goord and Greiner denied him medical treatment after the July 7, 2001 incident and that Greiner interfered with his access to legal materials and to the courts. As an alternative holding, the claims against Goord and Greiner must be dismissed for failure to allege the requisite personal involvement.
It is well settled that in order to state a cognizable claim under section 1983, a plaintiff must allege that a defendant engaged in conduct under color of state law that deprives him of rights secured by the Constitution or laws of the United States. See Katz v. Klehammer, 902 F.2d 204, 206 (2d Cir. 1987). To that end, civil rights complaints "must contain specific allegations of fact which indicate a deprivation of Constitutional rights; allegations which are nothing more than broad, simple and conclusory statements are insufficient to state a claim under § 1983." Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987). In addition, it is well settled that "`personal involvement of defendants in alleged Constitutional deprivations is a prerequisite to an award of damages under 42 U.S.C. Sec. 1983.'" Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)); see also Santiago, 89 F. Supp. 2d at 442.
This Circuit has identified five ways in which a defendant may be personally involved in a section 1983 violation:
(1) the defendant participated directly in the infraction, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.Colon, 58 F.3d at 873. In the absence of such involvement, a defendant cannot be liable.
Here, plaintiff's allegations regarding Goord and Greiner are nothing more than broad and conclusory statements that do not allege any personal involvement. There are no allegations that these defendants were personally involved in any improper conduct. Plaintiff is suing these defendants based solely on their positions. See Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985) (holding that mere "linkage in the prison chain of command" will not suffice to establish personal involvement).
Plaintiff also attempts to establish personal involvement by Griener through his role in plaintiff's grievance decisions. Invariably, a prisoner's grievance is passed upon by the Superintendent. See 7 N.Y.C.R.R. § 701.7(b). This is not enough, however, to establish the requisite personal involvement. The fact that Superintendent Greiner affirmed the denial of plaintiff's grievances is insufficient to establish personal involvement.
Moreover, the Superintendent's adoption of the recommendation by the investigating officer cannot by itself demonstrate that he failed to remedy known misconduct. Were it otherwise, virtually every prison inmate who sues for Constitutional torts by prison guards could name the Superintendent as a defendant since the plaintiff must pursue his prison remedies and invariably the plaintiff's grievance will have been passed upon by the Superintendent.Thompson v. New York, No. 99 Civ. 9875, 2001 WL 636432, at *7 (S.D.N.Y. Mar. 15, 2001). Therefore, plaintiff's claims against Goord and Greiner must be dismissed, in the alternative, for lack of personal involvement. See Joyner v. Greiner, 195 F. Supp. 2d 500, 506 (S.D.N.Y. 2002) ("The fact that Superintendent Greiner affirmed the denial of plaintiff's grievance — which is all that is alleged against him — is insufficient to establish personal involvement or to shed any light on the critical issue of supervisory liability, and more particularly, knowledge on the part of the defendant.") (internal quotation marks and citation omitted).
C. Dismissal of the Claims Against Defendants Is With Prejudice
The dismissal of the claims against Goord, Greiner, Keyser, Thornton, Trombley, Daily, Rodas, Mitchell, Maddox, Welch and Montegari is with prejudice because plaintiff failed to name these defendants in any grievance filed and appealed to the CORC. In Berry v. Kerik, 366 F.3d 85, 86 (2d Cir. 2003), the Second Circuit addressed the issue of whether "a district court should dismiss with or without prejudice a prison conditions complaint by a prisoner who has not exhausted administrative remedies." In Berry, the plaintiff filed two lawsuits complaining of mistreatment that is alleged to have occurred at the Riker's Island Correctional Facility. See id. Plaintiff did not exhaust his administrative remedies regarding the allegations in either lawsuit. See id. at 87. The Second Circuit held:
As long as he was within the custody of the agency against which he had grievances, the NYCDOC, he was required to use available grievance procedures. Under these circumstances and in the absence of any justification for not pursuing available remedies, his failure to pursue administrative remedies while they were available precluded his federal lawsuits, and they were properly dismissed with prejudice. Id. at 88 (footnote omitted). See also Cole v. Miraflor, No. 02 Civ. 9981, 2003 WL 21710760, at *3 (S.D.N.Y. July 23, 2003) (dismissing complaint with prejudice based on plaintiff's failure to exhaust his administrative remedies and inability to cure the failure); Wagnoon v. Johnson, No. 02 Civ. 10282, 2003 WL 22384770, at *5 (S.D.N.Y. Oct. 20, 2003) (stating that Berry "makes clear that the failure to pursue administrative remedies while they are available results in dismissal with prejudice"). Accordingly, the claims dismissed herein are dismissed with prejudice.
D. Dismissal of Unexhausted Claims
Defendants seek to dismiss plaintiff's complaint in its entirety because it contains both exhausted and unexhausted claims. However, the Second Circuit recently rejected a rule requiring total exhaustion and held that a federal district court need not dismiss, in its entirety, a prisoner's complaint containing both unexhausted and exhausted claims. See Ortiz v. McBride, No. 02-0088, 2004 WL 1842644, at *1 (2d Cir. Aug. 18, 2004).
At the end of the day, then, we do not think that requiring district courts to dismiss the entirety of any prison-conditions action that contains exhausted and unexhausted claims, and thereby requiring prisoners to institute their actions containing only the exhausted claims in federal court all over again, is a meaningful way to reduce the quantity and improve the quality of prisoner suits, or to help bring relief to a civil justice system overburdened by frivolous prisoner lawsuits. We therefore conclude that the presence of the unexhausted Eighth Amendment claim in Ortiz's complaint when he brought it did not require the district court to dismiss the action in its entirety.Id. at *12 (internal quotation marks and citations omitted). In accordance with Ortiz, only plaintiff's unexhausted claims are dismissed.
III. CONCLUSION
For the foregoing reasons, the only claim remaining is plaintiff's excessive force claim against Henschel, Norton and Daly. All other claims are unexhausted and therefore dismissed with prejudice. A status conference is scheduled for September 1, 2004, at 4:00 p.m., in Courtroom 15C. The Clerk of the Court is directed to close this motion (Document # 78).
SO ORDERED.