Opinion
No. 05 Civ. 3384 (WHP).
March 17, 2006
Howard Larkin, Downstate Correctional Facility Fishkill, NY, Plaintiff Pro Se.
Jeb Harben, Esq, Office of Attorney General, NY, State of New York, Counsel for Defendants.
ORDER
Plaintiff Howard Larkin brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights while an inmate at Downstate Correctional Facility ("Downstate"). Plaintiff claims that he was physically assaulted on January 17, 2005 by Defendants Ricenberg, Allen and Caliguri, who are correction officers at Downstate. The Defendants move to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and (6).
The task of this Court in ruling on a motion to dismiss is "merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000). When deciding a motion to dismiss, courts must "take as true all of the allegations contained in plaintiff's complaint and draw all inferences in favor of plaintiff." Weinstein v. Albright, 261 F.3d 127, 131 (2d Cir. 2001). Because "most pro se plaintiffs lack familiarity with the formalities of pleading requirements, [courts] must construe pro se complaints liberally, applying a more flexible standard to evaluate their sufficiency." Lerman v. Bd. of Elections, 232 F.3d 135, 140 (2d Cir. 2000).
Defendant moves to dismiss the Complaint on the ground that Plaintiff failed to exhaust his administrative remedies prior to initiating this proceeding. The Prisoner Litigation Reform Act states that "no action shall be brought with respect to prison conditions under [ 42 U.S.C. § 1983] . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). This 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). Accordingly, inmates must exhaust all administrative remedies, at all levels of appeal, in order for their claims to survive a motion to dismiss. Abney v. McGinnis, No. 01 Civ. 8444 (SAS), 2002 WL 1461491, at *2 (S.D.N.Y. July 3, 2002).
The Complaint in this action was filed on February 18, 2005. The parties disagree as to the precise date on which Plaintiff filed his administrative grievance with the New York Department of Correctional Services (the "DOCS"). However, it is undisputed that as of February 18, 2005, Plaintiff's grievance had yet to be resolved by the DOCS. "[T]he exhaustion requirement is not satisfied until the administrative process has reached a final result . . . Thus, as far as the record before this Court shows, at the time the complaint was filed, administrative review had not been completed, and the requirements of § 1997e(a) had not yet been met." Mendez v. Artuz, No. 01 Civ. 4157 (GEL), 2002 WL 313796, at *2 (S.D.N.Y. Feb. 27, 2002). This is true regardless of whether Plaintiff exhausted his administrative remedies after he filed the Complaint. Mendez, 2002 WL 313796, at *2.
The Complaint is therefore dismissed without prejudice.Saunders v. Goord, No. 98 Civ. 8501 (JGK), 2002 WL 1751341, at *3 (S.D.N.Y. July 29, 2002). The Clerk of the Court is directed to mark this case closed.
SO ORDERED.