Opinion
No. 04 Civ. 0463 (GBD).
January 18, 2005
OPINION
Pro se plaintiff brings this action against New York State Correction Officers R.L. Ortiz, M. Mendez, and R. Hillary ("defendants"), alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983. Defendants move to dismiss for failure to exhaust administrative remedies pursuant the Prisoners' Litigation Reform Act of 1995 (" PLRA"). For the reasons stated below, defendants' motion is granted.
Plaintiff Julio Melo is an inmate in the custody of the New York State Department of Correctional Services. Plaintiff alleges that he was transferred from Tappan Correctional Facility to Sing Sing Correctional Facility on or about July 1, 2002, to attend a "program committee call-out." Complaint at 1, ¶ 1. Plaintiff asserts that he was dismissed from the program committee room because he refused to attend the program. Plaintiff claims that defendant Hillary then ordered him to the disciplinary office where he met defendants Ortiz and Mendez. Plaintiff asserts that he was searched in the office, and told to return to the holding cell. Before returning, defendant Ortiz told him he could not bring his "net bag" into the holding cell. Id. at 2, ¶ 2. Plaintiff asked to keep the papers that were inside the bag, but defendant Ortiz denied this request. Plaintiff alleges that defendants threw him to the floor, handcuffed him, and beat him. As a result of the assault, plaintiff claims that he sustained various injuries and currently suffers from severe physical pain and mental anguish. Plaintiff claims violations of his Fifth, Eighth, and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983.
Plaintiff filed his complaint on December 8, 2003. Defendants assert that plaintiff has failed to exhaust all available administrative remedies, as required by the PLRA, because he did not timely file a grievance pursuant to the available grievance procedure.
The Second Circuit has concluded 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) (per curiam). However, under the PLRA, an inmate must exhaust all administrative remedies prior to bringing suit in federal court pursuant to 42 U.S.C. § 1983. See Booth v. Churner, 532 U.S. 731, 742, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Specifically, the PLRA provides, in relevant part: "No action shall be brought with respect to prison conditions under section 1983 . . . or any other federal law, by a prisoner . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). This 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, 120 S.Ct. 983, 152 L.Ed.2d 12.
New York State has established an Inmate Grievance Procedure to provide inmates with a formal process to redress their complaints. See N.Y. Correction Law § 139; 7 N.Y.C.R.R. § 701.7. First, an inmate must file a complaint with the Inmate Grievance Resolution Committee within fourteen days of the alleged incident. 7 N.Y.C.R.R. § 701.7(a)(1). Next, the inmate may appeal an adverse decision to the superintendant of the facility within four working days of receipt of the decision.Id. § 701.7(b). Lastly, the superintendant's decision may be appealed to the Central Office Review Committee within four days of the inmate's receipt of the written response. Id. § 701.7(c)(4).
Plaintiff has not complied with the grievance process at the first level because he failed to timely file a complaint. Plaintiff filed a grievance complaint form on June 9, 2003, where he "repeats and realleges all the information contained within the September 13, 2002, grievance previously filed at Sing Sing Correctional Facility (enclosed)." See Declaration of Jonathan Saul in Support of Defendants' Motion to Dismiss, Exhibit D. However, there is no record of a grievance being filed on September 13, 2002, at Sing Sing. See id., Exhibits C and B. Moreover, even if plaintiff's unsupported allegation that he filed a grievance on September 13, 2002, is accepted as true, he still failed to exhaust his administrative remedies because he did not file his complaint within fourteen days of the alleged July 1, 2002, incident. See Cole v. Miraflor, 2003 U.S. Dist. LEXIS 124641 *6 (S.D.N.Y. 2003) (finding "failure to file a timely grievance constitutes failure to exhaust administrative remedies as required by the PLRA"). Accordingly, plaintiff's complaint is dismissed for failure to exhaust his administrative remedies.
Plaintiff further claims that he filed "at least three grievances, two of them at Sing Sing Correctional Facility complaining about the defendants' abusive behavior in this matter." Pl.'s Opp. Mem. to Def.'s Motion to Dismiss, at 3. These conclusory allegations, however, are unsupported by any substantive allegation of fact. Indeed, there is no record of these grievances, and plaintiff has not pointed to any record, document, or other evidence that could support his claim.
Defendants emphasize that they have no record, and plaintiff has produced no copy, of a grievance filed on September 13, 2002.
SO ORDERED.