Opinion
01 Civ. 5217 (SHS).
April 17, 2002
OPINION ORDER
Jerry Waters, a prison inmate, brings this pro se action pursuant to 42 U.S.C. § 1983, alleging that defendants — all corrections officers or other employees of the New York State Department of Correctional Services ("DOCS") — violated his Eighth Amendment right to be free from cruel and unusual punishment by using excessive force against him and denying him adequate medical attention. Defendants have moved to dismiss the complaint on the grounds that plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act of 1995 ("PLRA"). Both parties have submitted supplemental memoranda to the Court regarding the exhaustion issue in light of the U.S. Supreme Court's recent decision in Porter v. Nussle, ___ U.S. ___ 122 S. Ct. 983 (Feb. 26, 2002). Because plaintiff did not exhaust the available administrative remedies prior to commencing this action, the complaint must be dismissed.
I. BACKGROUND
The following facts, alleged in the complaint, are assumed to be true for purposes of the present motion. On January 6, 1999, Waters was in Side Room 1 of New York Downstate Correctional Facility when a fight broke out between two other inmates. As Waters grabbed one inmate in an attempt to stop the fight, several defendants and another inmate threw him against the wall. Defendants removed Waters from Side Room 1 to another room where they allegedly subjected him to physical abuse. They then dragged Waters from the receiving room to the hospital while beating him. Upon arrival, defendant Booth refused to give Waters medical attention. (Compl., § IV.) Plaintiff subsequently suffered back pain, headaches, loss of stability in his legs and abrasions upon his wrists. (Compl., Section IV-A.)
Plaintiff brought suit pursuant to 42 U.S.C. § 1983 in May 2001, seeking monetary relief on the grounds that defendants' actions violated his constitutional rights. Defendants moved to dismiss the complaint in September 2001, claiming that 1) Waters had failed to exhaust his administrative remedies within DOCS as mandated by the PLRA and 2) Waters' complaint failed to state a claim of medical indifference. In December 2001, Waters submitted additional material to the Court indicating that he had filed an administrative grievance in October 2001 — after the commencement of this lawsuit — and claiming that he had thereafter exhausted all available administrative remedies.
II. DISCUSSION
Pursuant to the PLRA, "[n]o 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." 42 U.S.C. § 1997e(a). In Nussle, the Supreme Court held this exhaustion requirement to apply 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." 122 S. Ct. at 992. Waters may therefore only bring suit in federal court after he has exhausted "any available administrative remedies, including all appellate remedies provided within the system." Fletcher v. Haase, No. 99 Civ. 9549, 2002 WL 313799, at *1 (S.D.N.Y. Feb. 27, 2002) (citing Booth v. Churner, 532 U.S. 731, 735 (2001)). See also Diezcabeza v. Lynch, 75 F. Supp.2d 250, 255 (S.D.N.Y. 1999).
In his submissions to the Court, Waters alleges that he attempted to file a grievance with the Inmate Grievance Resolution Committee ("IGRC") in April 2001 but never received a response. Defendants maintain that no such grievance was ever filed, and Waters' complaint states that he did not file an administrative grievance. (Compl., § II.) In either case, it is undisputed that Waters did not pursue the available appeals within the prison grievance system. Specifically, if the IGRC denies an inmate grievance, the inmate may appeal to the superintendent of the facility and further appeal to the Central Office Review Committee ("CORC") for reconsideration of the decision. See N Y Comp. Codes R. Regs. tit. 7, § 701.7. The IGRC is required to review an inmate's grievance and either resolve it informally or hold a hearing within seven days of receipt. See id. If the committee fails to respond to the grievance, the inmate may appeal to the next level without awaiting administrative action. See id. § 701.8. Waters does not allege that he filed any appeals after the IGRC allegedly failed to respond to his grievance. He therefore did not exhaust the available administrative remedies prior to filing this lawsuit.
Nor can Waters' subsequent efforts to fulfill the exhaustion requirement prevent dismissal of this action. The U.S. Court of Appeals for the Second Circuit has held that a plaintiff must have met the exhaustion requirement at the time the complaint is filed. Neal v. Goord, 267 F.3d 116, 117-18 (2d Cir. 2001). Thus, although Waters claims that he has now exhausted all available administrative remedies, "the acknowledged fact that he had not done so before filing this complaint requires that the case be dismissed." Fletcher, 2002 WL 313799 at * 1. The Court recognizes that if Waters has in fact already received a final determination in the internal grievance procedure, he may refile the same complaint "with the addition of paragraphs explaining how administrative remedies have been exhausted." Mendez v. Artuz, No. 01 Civ. 4157, 2002 WL 313796, at *2 (S.D.N Y Feb. 27, 2002). While hardly the most efficient solution in the case at hand, such procedure is the law of this Circuit and need be followed.
III. CONCLUSION
Because plaintiff had not exhausted "such administrative remedies as are available" prior to commencing this litigation, defendants' motion to dismiss the complaint is granted and the complaint is dismissed without prejudice.