REPORT AND RECOMMENDATION

GABRIEL GORENSTEIN, Magistrate Judge

To the Honorable Richard C. Casey United States District Judge

Glenn Wagnoon, an inmate at the Sing Sing Correctional Facility ("Sing Sing") proceeding pro se, seeks relief under 42 U.S.C. § 1983 against various employees of the New York State Department of Correctional Services ("DOCS"). A number of defendants have moved to dismiss Wagnoon's amended complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6).See Notice of Motion, filed July 7, 2003 (Docket #21). For the following reasons, the motion should be granted.

I. BACKGROUND

Wagnoon alleges that Dr. Johnson and other members of the staff of Sing Sing have been deliberately indifferent to his dental needs in violation of his rights under the Eighth Amendment. See generally Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). Wagnoon seeks damages and an injunction compelling defendants to provide him with needed medical care. On December 27, 2002, United States District Judge Michael B. Mukasey directed Wagnoon to submit an amended complaint that contained,inter alia, additional detail concerning the exhaustion of his administrative remedies. See Order, dated December 27, 2002 (Docket #3) ("December 27 Order"). In response, Wagnoon submitted an amended complaint on January 22, 2003. See Amended Complaint, filed January 22, 2003 (Docket #4) ("Am. Compl.").

For purposes of this motion, the facts alleged in the amended complaint will be accepted as true. In light of Wagnoon's pro se status, the Court will also deem the factual allegations contained in Wagnoon's briefs to supplement his amended complaint. See, e.g., Woods v. Goord, 2002 WL 731691, at *1 n. 2 (S.D.N.Y. Apr. 23, 2002) (considering pro se prisoner's factual allegations in briefs as supplementing his complaint); Burgess v. Goord, 1999 WL 33458, at *1 n. 1 (S.D.N.Y. Jan. 26, 1999) ("In general, 'a court may not look outside the pleadings when reviewing a Rule 12(b)(6) motion to dismiss. However, the mandate to read the papers of pro se litigants generously makes it appropriate to consider plaintiffs additional materials, such as his opposition memorandum.'") (quoting Gadson v. Goord, 1997 WL 714878, at *1 n. 2 (S.D.N.Y. Nov. 17, 1997)). Examining such materials is consistent with the principle that a court may not dismiss a pro se complaint unless it is "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" Haines v. Kerner, 404 U.S. 519, 521 (1972) (per curiam) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957));accord Lerman v. Bd. of Elections, 232 F.3d 135, 140 (2d Cir. 2000), cert. denied, 533 U.S. 915 (2001).

Dr. Johnson extracted several of Wagnoon's teeth in 1997. See Am. Compl. ¶ 5. This surgery resulted in infection, bleeding, swelling and pain. Id. Wagnoon raised allegations concerning Dr. Johnson's negligent treatment in a prior action, Wagnoon v. Sing Sing Corr. Facility, 98 Civ. 3888, which was dismissed sua sponte because the complaint lacked "an arguable basis either in law or fact." See December 27 Order at 1; Am. Compl. ¶ 3. Wagnoon also filed an action in the New York State Court of Claims regarding the 1997 surgery, which was dismissed as well. See Am. Compl. ¶ 5; December 27 Order at 2.

The allegations in the instant case pertain to Dr. Johnson and the dental staffs alleged continuing neglect of Wagnoon's medical and dental needs following the 1997 surgery. According to Wagnoon, Dr. Johnson submitted a "Request for Prosthesis Authorization" for upper and lower dentures for Wagnoon on two separate occasions. Am. Compl. ¶ 11. The first request was approved by Dr. Martin Korfman, a Regional Dental Director, on September 24, 1999. Id. ¶ 11(b), Ex. A. The second request was approved by Dr. William Griffin, also a Regional Dental Director, on November 1, 1999. Id. ¶ 11(c), Ex. B. Nevertheless, Wagnoon has never received dentures, a situation he attributes to Dr. Johnson's failure to follow his own recommendations.Id. ¶ 11(a). Wagnoon alleges that Dr. Johnson never informed him of these approvals, id., ¶ 13(b), and that Dr. Johnson has failed to provide any form of treatment for Wagnoon's discomfort, pain, and swelling, including recommending a soft diet,id., ¶ 11(e)-(f). Wagnoon alleges that he has regularly put in call-out requests to be seen by the dental clinic. Id. ¶ 12. However, the staff have refused to acknowledge these requests.Id. On one occasion, Wagnoon went to the dental clinic and staff advised him to leave or face discipline. Id. ¶ 16(b).

The defendants have moved to dismiss the complaint on two grounds: (1) the amended complaint fails to allege Wagnoon's exhaustion of his administrative remedies within DOCS, and (2) the amended complaint fails to allege the personal involvement of the defendants bringing this motion. Because it is clear that Wagnoon has not exhausted his administrative remedies, the case must be dismissed on that basis.

II. DISCUSSION

A. Standard of Review

In resolving a motion to dismiss under Fed.R.Civ.P. 12(b)(1) or 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. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974);Cosmas v. Hassett 886 F.2d 8, 11 (2d Cir. 1989). 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, 355 U.S. at 45-46. 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) (quoting Haines, 404 U.S. at 520), 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)).

B. Exhaustion

The Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), provides:

No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.

Accordingly, 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); see also Porter v. Nussle, 534 U.S. 516, 524 (2002) ("All 'available' remedies must now be exhausted; those remedies need not meet federal standards, nor must they be 'plain, speedy, and effective.'") (citations omitted). In New York, this requires complying with the three-step grievance and appeal procedure outlined in the Inmate Grievance Program, 7 N.Y.C.R.R. § 701. See Hemphill v. New York, 198 F. Supp.2d 546, 548 (S.D.N.Y. 2002). In brief, an inmate must first file a complaint with the Inmate Grievance Resolution Committee ("IGRC"). 7 N.Y. C.R.R. § 701.7(a). Next, after receiving a response from the IGRC, the inmate may appeal to the superintendent of the facility.Id. § 701.7(b). Finally, after receiving a response from the superintendent, the prisoner can seek review of the superintendent's decision with the Central Office Review Committee ("CORC"). Id. § 701.7(c). See, e.g., Anderson v. Pinto, 2002 WL 1585907, at *1 (S.D.N.Y. July 17, 2002). In New York, a "prisoner has not exhausted his administrative remedies until he goes through all three levels of the grievance procedure." Hemphill, 198 F. Supp.2d at 548; accord Sulton v. Wright, 265 F. Supp.2d 292, 296 (S.D.N.Y. 2003) (inmates must "exhaust all administrative remedies, at all levels of appeal, in order for their claims to survive a motion to dismiss"); Rivera v. Goord, 253 F. Supp.2d 735, 746 (S.D.N.Y. 2003).

The Supreme Court has clarified that "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, 534 U.S. at 532. The New York Inmate Grievance Program "permits inmates to file internal grievances as to virtually any issue affecting their confinement."Flanagan, 2002 WL 122921, at *1. The exhaustion requirement also applies when a plaintiff seeks relief not available in prison administrative proceedings, such as monetary damages. See Booth v. Churner, 532 U.S. 731, 740-41 (2001).

Some courts treat exhaustion as a matter that a plaintiff must present in the complaint, while others treat it as an affirmative defense.See generally McCoy v. Goord, 255 F. Supp.2d 233, 247-48 (S.D.N.Y. 2003) (collecting cases). The issue need not be resolved in this case because Judge Mukasey gave notice to Wagnoon of this potential defect in his claim and specifically required Wagnoon to "show that he has completely exhausted the above administrative remedies through the highest level for each claim he seeks to present." December 27 Order at 5; see also id. ("Plaintiff must detail the administrative remedies he exhausted for each claim, including all appellate remedies provided within the DOCS system."). Judge Mukasey further made clear that a failure to do so could result in the dismissal of his complaint.See generally id., at 4-6. Thus, Wagnoon was given ample notice that he was required to furnish all facts relating to exhaustion in his amended complaint. See Neal v. Goord, 267 F.3d 116, 123-24 (2d Cir. 2001) ("Since the availability of administrative remedies for an inmate's particular grievance is typically not clear from the face of a complaint, the better practice in a given case may be to afford notice and opportunity to respond before dismissal when exhaustion is the basis for that action.") (citations omitted). Furthermore, the defendants moved to dismiss specifically on the exhaustion issue and Wagnoon again had the opportunity to allege exhaustion in response to that motion. Wagnoon obviously understood his obligations on this score as he addresses the exhaustion issue in his various filings with the Court.

In none of these filings, however, does Wagnoon even claim to have followed the three-step process with respect to the matters raised in the amended complaint. To the contrary, he specifically states that "all grievances filed never made its way to any hearings or appeals or CORC. . . ." Plaintiff s Memorandum of Law, dated July 2003 ("Pl. Mem."), at 11. The failure to file an appeal with the superintendent and the CORC is by itself fatal to Wagnoon's complaint as both steps are required for full exhaustion of his claim. See Hemphill, 198 F. Supp.2d at 548.

Wagnoon does make references to certain papers in his grievance file — apparently dating from before May 1999 — having been lost when they became the subject of a later retaliation claim. Am. Comp., ¶ 15(d). It is unclear if he is pointing to this loss in an attempt to avoid the exhaustion requirement. Certainly, in some situations an inmate's suit may be allowed to proceed where the inmate has made a reasonable attempt to exhaust and prison officials have impeded or prevented those efforts. See O'Connor v. Featherston, 2002 WL 818085, at *2-*3 (S.D.N.Y. Apr. 29, 2002) (motion to dismiss denied where inmate made "substantial" efforts to comply that were repeatedly impeded); Rodriguez v. Hahn, 2000 WL 1738424, at *2 (S.D.N.Y. Nov. 22, 2000) (technical failure to exhaust excused where inmate provided evidence of a "reasonable attempt" to exhaust and alleged that corrections officers never filed some of his grievances). In this case, however, Wagnoon never suggests that the loss of the papers prevented him from filing any appeal. And as a matter of logic, the fact that pages were taken from the grievance file in response to a later harassment complaint would not have affected Wagnoon's ability to take an appeal of the original grievance. See 7 N.Y.C.R.R. § 701.8 ("matters not decided within the time limits" required for issuance of a decision "may be appealed to the next step"); see also Mendoza v. Goord, 2002 WL 31654855, at *2 (S.D.N.Y. Nov. 21, 2002) ("If, as a result of negligent error by prison officials — or even their deliberate attempt to sabotage a prisoner's grievance — the prisoner does not receive a copy of the decision on his complaint, he is not thereby forestalled from appealing to CORC.").

In his most recent response to the current motion, Wagnoon appears to argue that he has not made any appeals of his grievances because any such appeal would have been "fruitless " — apparently based on his contention that the superintendent would have merely "referred" the matter back to the attention of a lower-level employee. See Plaintiffs Second Memorandum of Law, dated August 15, 2003 ("Pl. Mem. n"), at 3. But exhaustion of administrative remedies is required even if an inmate believes that such exhaustion would be futile. See, e.g., Paulino v. Amicucci, 2003 WL 174303, at *3 (S.D.N.Y. Jan. 27, 2003).

Wagnoon appears to have made some recent attempts to present his grievance. In his most recent submission, he attaches a letter from Thomas G. Eagen, Director of the Inmate Grievance Program, reflecting that Wagnoon sent a letter directly to Commissioner Glenn S. Goord on March 21, 2003. See Letter from Thomas G. Eagen, dated April 2, 2003 ("Eagen Letter") (annexed to PI. Mem. II). This letter does not show exhaustion, however, since a letter to the Commissioner of DOCS is not part of the grievance process. See, e.g., Branch v. Brown, 2003 WL 21730709, at *8 (S.D.N.Y. July 25, 2003) ("'Courts have repeatedly held that complaint letters to the DOCS Commissioner or the facility Superintendent do not satisfy the PLRA's exhaustion requirements.'") (quoting Nelson v. Rodas, 2002 WL 31075804, at *3 (S.D.N.Y. Sept. 17, 2002)). Indeed, Eagen's letter itself informs Wagnoon that he has not followed the appropriate procedure for filing a grievance. See Eagen Letter at 1 ("The [Inmate Grievance Program] makes no provision for an inmate to refer grievances directly to Central Office.").

Finally, Wagnoon has attached to his most recent submission what is labeled as "2nd Grievance Complaint," regarding the dental staffs failure to acknowledge his call-out requests since February 13, 2003.See 2nd Grievance Complaint, dated August 12, 2003 (annexed to Pl. Mem. II). This grievance is alleged to be still pending,see Pl. Mem. II at 4, thus constituting an admission by Wagnoon that it has not been appealed. Under the PLRA, pre-suit exhaustion is required and a court has no discretion to stay an action pending exhaustion. See McCoy, 255 F. Supp.2d at 254 (citingNeal, 267 F.3d at 122).

Because Wagnoon admits that he has not exhausted his administrative remedies under the PLRA, the complaint must be dismissed in its entirety. While the Second Circuit had formerly stated that "the dismissal of claims for failure to exhaust should be without prejudice," Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir. 2002), that statement is no longer valid in light of Berry v. Kerik, — F.3d —, 2003 WL 22208791, at *1-*2 (2d Cir. Sept. 25, 2003), which makes clear that the failure to pursue administrative remedies while they are available results in dismissal with prejudice.

To the extent Wagnoon is still experiencing problems as a result of his allegations regarding the lack of dental care, obviously he is free to file a grievance now that sets forth these problems and follow the three-step process (or simply appeal the pending grievance if permissible). Should the matter not be resolved to his satisfaction following the completion of this process, he will be free to institute a new suit.

Conclusion

For the foregoing reasons, the amended complaint should be dismissed with prejudice because of Wagnoon's failure to exhaust his administrative remedies.

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 Honorable Richard C. Casey, 500 Pearl 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 Casey. 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).