Opinion
02 CIV. 5256 (DLC)
September 16, 2003
MEMORANDUM OPINION AND ORDER
On July 10, 2002, George Wilson ("Wilson") filed this action pursuant to 42 U.S.C. § 1983 seeking damages from several employees of the New York State Department of Correctional Services ("DOCS") for their failure to protect him from an assault by fellow inmates on December 7, 2000. Those defendants who have been served move to dismiss the action for Wilson's failure to exhaust his administrative remedies as required by the Prison Litigation Reform Act of 1995 ("PLRA"). The motion is granted.
In response to this motion, plaintiff asserts that he filed a grievance on November 27, 2000, that a hearing was held thereafter on November 30, but that he was unable to appeal and complete the exhaustion process because he never received a written decision. DOCS' regulations require an appeal to be made to the Superintendent and to the Central Office Review Committee ("CORC"). 7 NYCRR §§ 701.7(b) and (c), 701.11(b). Without an appeal, the exhaustion requirement is not satisfied. See Booth v. Churner, 532 U.S. 731, 738 (2001); Mendez v. Artuz, No. 01-C4157 (GEL), 2002 WL 313796, at *2 (S.D.N.Y. Feb. 27, 2002); Sulton v. Wright, 265 F. Supp.2d 292, 296 (S.D.N.Y. 2003). DOCS' regulations require a prompt decision, and if one is not rendered, an inmate may appeal without receiving a decision. See Mendoza v. Goord, No. 00-CO146 (GEL) 2002 WL 31654855, at *2 (S.D.N.Y. Nov. 21, 2002). Therefore, even assuming that Wilson began the exhaustion process, he did not complete it.
Moreover, as the defendants point out, while Wilson asserts that he began the grievance process to address the friction within the prison's Muslim community that precipitated the assault, he does not contend that he ever grieved the assault itself. For this reason alone, his lawsuit must be dismissed for failure to exhaust administrative remedies. See Porter v. Nussle, 534 U.S. 516, 532 (2002); Webb v. Goord, 340 F.3d 105, 112 (2d Cir. 2003); Lawrence v. Goord, 304 F.3d 198, 200 (2d Cir. 2002) (per curiam).
Finally, Wilson asserts that two letters of August 30 and August 5, 2000 to Superintendent John Keane and Commissioner Glenn S. Goord, respectively, satisfy the exhaustion requirement. These letters preceded the attack by months and could not satisfy the exhaustion requirement. In any event, an inmate must exhaust the administrative process contained in the prison regulations and letters to high ranking officials cannot substitute for the exhaustion of that process. See Mendoza, 2002 WL 31654855, at *3. Conclusion
The action is dismissed without prejudice for failure to exhaust administrative remedies.
SO ORDERED.