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finding a failure to exhaust administrative remedies because "the IGRP permitted [plaintiff] to appeal even if she did not receive a response to her grievance"
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03 Civ. 5440 (RMB) (GWG).
March 1, 2005
REPORT AND RECOMMENDATION
Inger Leacock, who was previously incarcerated at the Bayview Correctional Facility, has brought this suit pro se under 42 U.S.C. § 1983 alleging that she received inadequate medical treatment in violation of her rights under the Eighth Amendment while she was confined at Rikers Island Correctional Facility ("Rikers Island"). The two defendants who have been served have moved to dismiss Leacock's amended complaint pursuant to Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6). For the following reasons, the motion should be granted.
I. BACKGROUND
A. Procedural History
Leacock filed her complaint in this matter on July 23, 2003.See Complaint, filed July 23, 2003 (Docket #2). In her complaint, Leacock alleged that the defendants were deliberately indifferent to her medical needs in violation of her rights under the Eighth Amendment. See id. at 6. Leacock sought damages of $1.1 million dollars for pain and suffering. See id. at 7.
On the same day that the complaint was filed, Chief Judge Michel B. Mukasey directed Leacock to submit an amended complaint detailing her exhaustion of administrative remedies. See Order, dated July 23, 2003 (Docket #3) ("July 23, 2003 Order"), at 4-5. On October 22, 2003, Leacock submitted an amended complaint.See Amended Complaint, filed Oct. 22, 2003 (Docket #5) ("Am. Complaint").
B. Leacock's Amended Complaint
For purposes of this motion, the facts alleged in Leacock's amended complaint are assumed to be true.
On December 6, 2002, Leacock was on the medication line at Rikers Island when another inmate named Jennifer caused a disturbance by arguing with other individuals on the line. See id. at 4. Leacock asked one of the officers present to remove Jennifer from the line. Id. At that point, another inmate named Booker began arguing with Leacock. Id. at 5. Correctional officers subsequently began separating Leacock and Booker and, in the course of doing so, Booker pulled Leacock's finger back, thereby causing permanent damage to her middle finger. See id.
Following the incident, Leacock went to the clinic and was seen by a Dr. Mac, who ordered an X-ray of the injured finger. Id. Thereafter, Leacock's finger continued to swell and she continued to assert to doctors that she had torn tissue in her finger.Id. The doctors at Rikers Island, however, never called Leacock to review her X-rays and repeatedly informed her that there was nothing wrong with her finger. Id. at 5-6. Leacock was not permitted to go to the hospital until February 24, 2003. See id. at 6. At that time, surgery was performed on Leacock's hand. See id. Due to the almost three month delay in hospital treatment, as well as the "deliberate indifferen[ce]" and "negligence" of her treating physicians, Leacock has suffered permanent damage to her finger. See id.
Leacock states that she submitted a "grievance" explaining the incident in question to prison officials at Rikers Island. See id. at 3. Leacock, however, never received a response to her grievance because officials at Rikers Island "never answer" inmate grievances. Id.
C. The Instant Motion
Dr. Leveille and P.A. Jimoh — who appear from the docket sheet to be the only defendants who have been properly served — have now moved pursuant to Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P 12(b)(6) to dismiss the amended complaint. See Notice of Motion, dated May 14, 2004 (Docket #25) ("Notice of Motion"), at 1. The defendants argue, inter alia, that Leacock's "claims should be dismissed because she did not exhaust administrative remedies as required by the Prison Litigation Reform Act." Def. Mem. at 6. The motion included a notice pursuant to Local Civ. R. 56.2 informing Leacock that she could not rely on the allegations of the complaint in opposing the motion but instead was required to "submit evidence, such as witness statements or documents, countering the facts asserted by the defendants and raising issues of fact for trial." See Local Rule 56.2 Notice to Pro Se Litigant Opposing Motion for Summary Judgment (annexed to Notice of Motion) ("56.2 Notice"), at 1.
Leacock refers to this defendant as "Doctor P.A. Jimolt."See id. at 4. It appears, however, that this defendant's name is "Jimoh" and that this individual is a physician's assistant, not a doctor. See Memorandum of Law in Support of Defendants' Motion to Dismiss the Complaint, filed Aug. 17, 2004 (Docket #26) ("Def. Mem."), at 2.
In response, Leacock has submitted a declaration opposing the defendants' motion to dismiss. See Declaration of Inger T. Leacock, undated ("Leacock Decl."). In this declaration, Leacock asserts, inter alia, that she filed a grievance "with the grievance office [at Rikers Island] on or about December 15, 2002." Id. at 1. Leacock asserts that she did not hear anything further regarding the grievance, that she wrote to the warden, and that she did not get proper medical attention until she sought the assistance of the Legal Aid Society Prisoners' Rights Project ("Prisoners' Rights Project").See id. at 1-2. The respondents filed a reply in the form of a letter again raising Leacock's failure to exhaust. See Letter from Sheryl A. Bruzzese, dated Oct. 1, 2004. Leacock thereafter submitted an additional declaration in response to that letter alleging that she filed a grievance but making no claim that she took any further action after the filing of this grievance. See Declaration, dated Oct. 12, 2004 ("Oct. 12 Decl."), at 2. In this declaration, Leacock again alleges that the grievance she filed was not answered. Id.
II. APPLICABLE LEGAL STANDARDS
Defendants argue that Leacock's failure to exhaust her administrative remedies pursuant to the Prison Litigation Reform Act (" PLRA"), 42 U.S.C. § 1997e, deprives this Court of subject matter jurisdiction and that Leacock's claim must therefore be dismissed under Fed.R.Civ.P. 12(b)(1). See Def. Mem. at 2, 4-5 (citing cases). The main case relied upon by the defendants in support of this proposition, however, Benitez v. Straley, 2002 WL 31093608, at *2 (S.D.N.Y. Sept. 18, 2002), was reversed on precisely this point more than a month before the defendants submitted their brief in May 2004. See Benitez v. Straley, 2004 WL 816342, at *1 (2d Cir. Apr. 13, 2004). Indeed, case law was clear in 2003 — many months prior to Benitez — that "failure to exhaust administrative remedies is not a jurisdictional predicate" under the PLRA. Richardson v. Goord, 347 F.3d 431, 433 (2d Cir. 2003). Therefore, the Court rejects defendants' contention that the amended complaint must be dismissed pursuant to Fed.R.Civ.P. 12(b)(1). See also Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004) ("administrative exhaustion is not a jurisdictional predicate") (citing Richardson, 347 F.3d at 431).
Defendants have moved for dismissal in the alternative under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. Def. Mem. at 5. In resolving a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n. 1 (2002); Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted). In making this evaluation, complaints drafted by pro se plaintiffs are held "'to less stringent standards than formal pleadings drafted by lawyers,'"Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997) (quotingHaines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam)), and they "should be interpreted 'to raise the strongest arguments that they suggest.'" Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
III. DISCUSSION
A. Exhaustion
The PLRA provides that "[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). While the PLRA speaks only of "prison conditions," its 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) (citation omitted); see also Booth v. Churner, 532 U.S. 731, 731 (2001) (exhaustion is required under 42 U.S.C. § 1997e(a) even if only monetary relief is sought and even if that remedy is not available administratively). The exhaustion requirement of the PLRA mandates exhaustion of all available administrative remedies in instances where an inmate is alleging that prison officials were deliberately indifferent to his or her medical needs. See, e.g., Renelique v. Doe, 2003 WL 23023771, at *11 (S.D.N.Y. Dec. 29, 2003) (citing cases);Arroyo v. City of New York, 2003 WL 22211500, at *1 (S.D.N.Y. Sept. 25, 2003). Because Leacock's claim falls within the scope of the PLRA, she was required to have exhausted all administrative remedies available to her prior to bringing suit.See, e.g., Orta v. City of New York Dep't of Corr., 2003 WL 548856, at *2 (S.D.N.Y. Feb. 25, 2003).
New York City's exhaustion requirement is set forth in a Department of Corrections ("DOC") Directive entitled "Inmate Grievance Resolution Program" ("IGRP"). See Directive, Inmate Grievance Resolution Program, dated Mar. 4, 1985 ("Grievance Directive") (reproduced as Ex. D to Notice of Motion). Under this Directive, grievances may be filed for any "complaint pertaining to any written or unwritten policy of the [DOC], or any of its service units, or the manner in which these policies are carried out." Id. at 1.
The grievance procedure provides for five levels of review. First, the inmate may file a grievance with the Inmate Grievance Resolution Committee ("IGRC"), after which an attempt is made to resolve the grievance informally within five working days. Id. at 4, 6. If the grievance is not informally resolved, the inmate may seek formal review by the IGRC. Id. at 6. Where formal review is sought, the IGRC will issue a recommendation within three working days. Id. The inmate may then appeal the formal recommendation of the IGRC to the warden, who "is required to render a decision within five working days." Id. at 7. The inmate may appeal the decision of the warden to the Central Office Review Committee ("CORC") and the CORC will "render a decision within fifteen working days." Id. The inmate may next appeal the decision of the CORC to the Board of Correction ("BOC"). Id. The BOC must issue an "advisory recommendation" to the Commissioner within twenty working days. Id. The Commissioner must then issue a final decision within ten working days after receiving the BOC's recommendation. Id. Notably, the Grievance Directive provides that even if a decision is not timely issued at any step of the process, the prisoner may take an appeal to the next level. Id.; accord Renelique, 2003 WL 23023771, at *10.
In order to satisfy the PLRA's exhaustion requirement, a prisoner "must pursue his challenge to the conditions in question through the highest level of administrative review prior to filing his suit." Flanagan v. Maly, 2002 WL 122921, at *2 (S.D.N.Y. Jan. 29, 2002) (citations omitted); see also Renelique, 2003 WL 23023771, at *11 ("Courts have interpreted [the PLRA] to require complete exhaustion in accordance with institutional procedures.") (citing cases). In other words, under the PLRA, "all institutional remedies must be pursued . . . including all appellate remedies" provided by the applicable grievance procedures. Baez v. Parks, 2004 WL 1052779, at *4 (S.D.N.Y. May 11, 2004) (Report and Recommendation) (citations omitted), adopted by Order, filed July 20, 2004 (Docket #28 in 02 Civ. 5821).
B. Defendants' Claim of Non-Exhaustion
As noted, the defendants have asserted that Leacock did not exhaust her remedies with respect to this suit. See Def. Mem. at 6-9. As to exhaustion, Leacock asserts that she filed a grievance "with the grievance office on or about December 15, 2002." See Leacock Decl. at 1. Leacock contends that she received no response to her grievance and that her "complaints were ignored." Id. As a result, she contacted the Prisoners' Rights Project and described the failure of prison officials to provide her with medical care. See id. at 1-2. Leacock also contends that she wrote to the warden concerning her complaints. Id. at 1.
Accepting all of Leacock's allegations as true, and drawing all reasonable inferences in her favor, see, e.g., Bernheim, 79 F.3d at 321, Leacock's own statements regarding her efforts to exhaust show that she has not complied with the exhaustion requirement.
1. Legal Principles Governing the Assertion of the Defense of Failure to Exhaust
The Second Circuit has held that courts must undertake a "three-part inquiry . . . in cases where a prisoner plaintiff plausibly seeks to counter [the] defendants' contention that the prisoner has failed to exhaust available administrative remedies as required by the PLRA." See Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004). The court must first "ask whether administrative remedies were in fact 'available' to the prisoner." Id. (quoting Abney v. McGinnis, 380 F.3d 663 (2d Cir. 2004)). A court must next inquire into "whether the defendants may have forfeited the affirmative defense of non-exhaustion by failing to raise or preserve it, or whether the defendants' own actions inhibiting the inmate's exhaustion of remedies may estop one or more of the defendants from raising the plaintiff's failure to exhaust as a defense." Id. (citingJohnson v. Testman, 380 F.3d 691 (2d Cir. 2004)); Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004)) (internal citation omitted). If administrative remedies were available to the plaintiff, the defendants are not estopped from asserting the non-exhaustion defense, and "the plaintiff nevertheless did not exhaust available remedies, the court should consider whether 'special circumstances' have been plausibly alleged that justify 'the prisoner's failure to comply with administrative procedural requirements.'" Id. (quotingGiano, 380 F.3d at 670).
Separately, the Second Circuit has indicated "that plaintiffs are entitled to notice and an opportunity to be heard before a court can dismiss their complaints for failure to exhaust administrative remedies." Giano, 380 F.3d at 675 (citingSnider v. Melindez, 199 F.3d 108 (2d Cir. 1999)).
2. Analysis
a. Availability of remedies. With respect to whether administrative remedies were "available" to Leacock, it is significant that the IGRP itself provides such remedies. See Abney, 380 F.3d at 668 ("When determining whether an administrative remedy is available, courts 'should be careful to look at the applicable set of grievance procedures, whether city, state or federal.'") (quoting Mojias v. Johnson, 351 F.3d 606, 610 (2d Cir. 2003)). "To be 'available' under the PLRA, a remedy must afford 'the possibility of some relief for the action complained of.'" Id. at 667 (quoting Booth, 532 U.S. at 738).
Here, the IGRP specifically provided that claims such as those raised by Leacock in her amended complaint could be addressed through the grievance process. See Grievance Directive at 13 (stating that "any complaint about access . . . to [m]edical [s]ervices" may be grieved). Moreover, Leacock remained in the custody of the New York City Department of Correction from the time of this incident, December 2002, until July 2003, a period of close to seven months. See Def. Mem. at 2-3. During this time, Leacock had ample opportunity to file and appeal her grievance in accordance with IGRP procedures. Thus, the IGRP provided administrative remedies for the injury that Leacock now complains of.
b. Assertion of defense and estoppel. As an initial matter, it is clear that defendants have met the requirement of affirmatively asserting the defense of non-exhaustion and thus have not waived it. See Johnson, 380 F.3d at 695-96. Their motion papers made clear that they were moving to dismiss the complaint on exhaustion grounds. See Notice of Motion at 1.
Nor is there reason to conclude that the defendants should be estopped from raising the defense of non-exhaustion. Leacock has not alleged any facts suggesting that estoppel applies — for example, by alleging that "prison officials inhibit[ed] [her] ability to utilize grievance procedures." Abney, 380 F.3d at 667 (citing Ziemba, 366 F.3d at 163-64); see also O'Connor v. Featherston, 2002 WL 818085, at *2-*4 (S.D.N.Y. Apr. 29, 2002) (motion to dismiss denied where inmate made "substantial" efforts to comply with the exhaustion requirement that were repeatedly impeded by prison officials).
c. Whether there are "special circumstances" justifying Leacock's failure to exhaust. The analysis of whether "special circumstances" will excuse exhaustion is best examined in the context of what efforts Leacock actually made to exhaust her claim. Leacock asserts that she filed a grievance on December 15, 2002 and that prison officials subsequently failed to respond to her complaint. See Leacock Decl. at 1; see also Am. Complaint at 3 (stating that a grievance was submitted but that no response was received since "they never answer your grievance on Rikers Island"). While Leacock asserts without elaboration that she wrote to the warden regarding her complaint, see Leacock Decl. at 1, nowhere does she assert that she attempted to appeal her grievance to the CORC, the BOC, or the Commissioner. Even assuming that Leacock did file a grievance with the IGRC, her failure to allege that she appealed her grievance shows a failure to exhaust administrative remedies. See Renelique, 2003 WL 23023771, at *12 (prisoner must exhaust appellate remedies available within the grievance procedures) (citing cases); Petit v. Bender, 2000 WL 303280, at *2 (S.D.N.Y. Mar. 22, 2000) (same); Arroyo, 2003 WL 22211500, at *1 (same).
Leacock has not offered any basis on which this failure can be excused. While Giano did not require exhaustion in the case of allegations of due process violations occurring during the disciplinary process, see 380 F.3d at 675-76, 679, Giano excused the prisoner's failure to exhaust because of "his reasonable belief" that the applicable regulations "foreclosed such recourse." Id. at 678. No such circumstance exists here. Leacock appears to assert that it would have been futile to appeal her grievance because officials at Rikers Island do not respond to grievances. See Am. Complaint at 3; Oct. 12. Decl. at 2. Exhaustion of available administrative remedies, however, is required even if an inmate believes that such exhaustion would be futile. See Paulino v. Amicucci, 2003 WL 174303, at *3 (S.D.N.Y. Jan. 27, 2003) (citing cases); accord Nunez v. Goord, 172 F. Supp. 2d 417, 428-29 (S.D.N.Y. 2001); cf. Wagnoon v. Johnson, 2003 WL 22384770, at *4 (S.D.N.Y. Oct. 20, 2003) (Report and Recommendation) (no exhaustion despite plaintiff's contention that appealing his grievance would have been "fruitless") (alteration in original), adopted by 2004 WL 583764, at *1 (S.D.N.Y. Mar. 23, 2004).
Moreover, that Leacock allegedly did not receive a response to her grievance does not excuse her from failing to exhaust the appellate remedies available to her. The IGRP specifically provided that "[i]f a grievance is not decided within the allotted time frames, the grievant has the option of granting [sic] an extension or appealing the grievance to the next level." Grievance Directive at 7 (emphasis added). Thus, the IGRP permitted Leacock to appeal even if she did not receive a response to her grievance. The Second Circuit has held under similar circumstances that an inmate must follow an exhaustion mechanism even where there has been no adjudication of a grievance. See Gibson v. Goord, 280 F.3d 221, 223-24 (2d Cir. 2002); accord Sims v. Blot, 2003 WL 21738766, at *3 (S.D.N.Y. July 25, 2003); Petty v. Goord, 2002 WL 31458240, at *4 (S.D.N.Y. Nov. 4, 2002); McNair v. Sgt. Jones, 2002 WL 31082948, at *9 n. 5 (S.D.N.Y. Sept. 18, 2002) (Report and Recommendation), adopted by 2003 WL 22097730, at *1 (S.D.N.Y. Sept. 10, 2003).
In John v. N.Y.C. Dep't of Corr., 183 F. Supp. 2d 619, 625 (S.D.N.Y. 2002), the court excused an inmate's failure to appeal a grievance on the ground that it had not been decided. That decision, however, applied a different set of regulations than those applicable to the instant action. Nor did John make any mention of whether the regulations at issue contained a provision permitting appeal in the absence of a response to the grievance. Thus, this Court declines to follow John.
The Second Circuit has held that, where an inmate's failure to comply with the exhaustion requirement is justified by "special circumstances," "[t]he effect of such justification is that, though the administrative remedies are no longer available for reasons of timing or other procedural restrictions, such restrictions cannot serve to keep the plaintiff's suit from proceeding." Giano, 380 F.3d at 676. In Giano, these circumstances involved an ambiguity in prison regulations that could have been interpreted as foreclosing the filing of a grievance with respect to the particular complaint at issue in that case. Id. In Hemphill, the Second Circuit stated that a Court should look to "whether 'a similarly situated individual of ordinary firmness' would have been deterred from following regular procedures," 380 F.3d at 690 (quoting Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003)) (internal citation omitted) — the same test it had used to determine whether the grievance process was "available," see id. at 688. Leacock, however, sets forth no reason that would explain her failure to pursue her grievance. Thus, no "special circumstances" justified Leacock's failure to exhaust her administrative remedies.
d. Notice to Leacock. Finally, Leacock had sufficient notice that the exhaustion issue was under consideration by this Court and had ample opportunity to submit evidence relevant to that issue. See, e.g., Giano, 380 F.3d at 675. In making this determination, the Court recognizes that "it is not the plaintiff's burden to plead the elements of exhaustion in the complaint itself, but rather, the defendant[s'] burden to raise and prove failure to exhaust in [their] answer or motion to dismiss." Warren v. Purcell, 2004 WL 1970642, at *5 n. 8 (S.D.N.Y. Sept. 3, 2004) (citing cases). Here, Leacock was on notice that she had to submit facts relevant to the issue of exhaustion. When Leacock first filed her complaint, Chief Judge Mukasey required Leacock to "show that [s]he has completely exhausted . . . administrative remedies through the highest level for each claim [s]he seeks to present." July 23, 2003 Order at 3 (citing Santiago v. Meinsen, 89 F. Supp. 2d 435 (S.D.N.Y. 2000)). Chief Judge Mukasey further made clear that a failure to do so could result in the dismissal of the complaint. See id. at 5-6. Leacock obviously understood her obligations on this score as she addressed the exhaustion issue in the amended complaint. See Am. Complaint at 3.
In addition, defendants moved to dismiss specifically on this ground. See Notice of Motion at 1. Their memorandum of law discussed in detail the exhaustion issue. See Def. Mem. at 6-9. Furthermore, defendants attached to their Notice of Motion a statement pursuant to Local Civ. R. 56.2 notifying Leacock that she was required to provide witness statements or documentary evidence on disputed factual points. See 56.2 Notice at 1. The Court also issued an order requiring the defendants to provide discovery on the issue of exhaustion, see Order, filed June 1, 2004 (Docket #20), again making clear that the issue of exhaustion was pertinent to Leacock's claims. Finally, Leacock actually submitted two declarations in response to the defendants' motion. In each declaration, Leacock asserted facts relating to the issue of exhaustion. See Leacock Decl. at 1; Oct. 12 Decl. at 2. Thus, Leacock was given notice on multiple occasions that she was required to furnish facts relating to exhaustion as well as an opportunity to respond to the defendants' contentions on this issue. See, e.g., Mojias, 351 F.3d at 610-11. Because Leacock "has failed to produce evidence rebutting the defense of lack of exhaustion after being afforded the opportunity to do so," Warren, 2004 WL 1970642, at *5 n. 8 (citing cases), dismissal is required.
3. Whether Dismissal is With or Without Prejudice
The Second Circuit has held that dismissal of an inmate's action for failure to exhaust administrative remedies within the meaning of the PLRA shall be "with prejudice" in those instances "where exhaustion was required but administrative remedies have become unavailable after the prisoner had ample opportunity to use them and no special circumstances justified failure to exhaust." See Berry v. Kerik, 366 F.3d 85, 88 (2d Cir. 2004). In Berry, the plaintiff, a former Rikers Island inmate who was subsequently transferred to state custody, had failed to exhaust administrative remedies with respect to grievances relating to his treatment and the conditions at Rikers Island while he was incarcerated there. Id. at 86-87. In dismissing the plaintiff's complaint with prejudice, the Berry court concluded that the remedies the plaintiff sought to exhaust were "no longer available" to him since he was not incarcerated within the New York City prison system but rather was a state inmate. See id. at 86, 88. The Berry court also found that the plaintiff had "ample opportunity" to pursue his grievances against the Rikers Island officials since the conditions giving rise to the grievance existed for "several months" while he was incarcerated there, and because he was subsequently incarcerated at Rikers Island on two separate occasions. See id. at 88. Therefore, because the plaintiff had failed to set forth any justification for not pursuing administrative remedies while they were available to him, the court concluded that the complaint should be dismissed with prejudice. Id.
As was the case in Berry, the City grievance procedure was available to Leacock for "several months." The incident giving rise to Leacock's grievance occurred on December 6, 2002. See Am. Complaint at 4-5. Leacock has not contested that she remained in the custody of the New York City Department of Corrections until July 2, 2003. See Def. Mem. at 4. Thus, a period of almost seven months elapsed between the time of the incident and Leacock's transfer from Rikers Island, during which time she could have pursued her grievance while remedies were available to her. Cf. Finger v. Superintendent McGinnis, 2004 WL 1367506, at *5 (S.D.N.Y. June 16, 2004) (period of nine months provided an "ample opportunity" to exhaust administrative remedies); Oates v. City of New York, 2004 WL 744611, at *2 (S.D.N.Y. Apr. 6, 2004) (plaintiff failed to exhaust administrative remedies where "he had ample opportunity to avail himself of the grievance procedure during the nine months of confinement in the DOC preceding his transfer" but failed to do so) (citation omitted). This situation thus differs considerably from what prevailed in another of Leacock's cases, where she was transferred from City to state custody the day after the incident in question. See Leacock v. City of New York, 2005 WL 323723, at *1, *5 (S.D.N.Y. Feb. 10, 2005). Because Leacock had an opportunity to exhaust her claim and can no longer do so now, the dismissal should be with prejudice.
Conclusion
For the foregoing reasons, Leacock's amended complaint should be dismissed with prejudice.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to file any objections.See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. Richard M. Berman, 40 Centre Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Berman. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).