Opinion
01 Civ. 2648 (BSJ) (DF)
April 4, 2002
MEMORANDUM AND ORDER
On July 18, 2001, defendants in this pro se prisoner's civil rights case moved to dismiss plaintiff's complaint, arguing, among other things, that, by failing to file an inmate grievance regarding the conduct challenged in the complaint, plaintiff did not adequately exhaust his administrative remedies, as required by Section 1997e(a) of the Prison Litigation Reform Act ("PLRA"). Defendants' motion raised complex legal issues with respect to the scope of the PLRA's exhaustion requirement, relying in part on arguments that, in the context of other cases, had been presented to, but not yet addressed by, the Supreme Court.
This section provides that no action may be brought "with respect to prison conditions" under Section 1983, until "such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a).
In their brief, defendants cited both Lawrence v. Goord, 238 F.3d 182 (2d Cir. 2001), in which a petition for certiorari had been filed with the Supreme Court in April 2001, and Nussle v. Willette, 224 F.3d 95 (2d Cir. 2000), in which a writ of certiorari had been granted by the Supreme Court (sub nom. Porter v. Nussle) in June 2001. (See Defendants' Memorandum of Law in Support of Their Motion To Dismiss, dated July 18, 2001, at 11.) Expressly relying on "reasons set forth in the [Lawrence] petition for certiorari," defendants asserted that both of these Second Circuit decisions were "wrongly decided and should not be followed." (Id. at 11-12.)
Because this Court believed that, without the assistance of counsel, plaintiff would have undue difficulty responding to these arguments, as well as proceeding with discovery, and because plaintiff otherwise met the standards for appointment of counsel, the Court, on July 31, 2001, ordered that counsel be appointed for plaintiff. As a result of that July 31 Order, the Court's Pro Se Office added this matter to its list of cases for which pro bono counsel had been requested. The Court also stayed further proceedings in this action, pending the appearance of counsel for plaintiff.
Over eight months have now passed, however, and apparently no attorney has accepted the requested representation. Further, the Supreme Court has recently issued a decision in Porter v. Nussle, 122 S.Ct. 983 (2002), which substantially clarifies the PLRA's exhaustion requirement. In light of this development in the law, the Court's concerns regarding plaintiff's ability to respond to defendants' motion are largely alleviated. Under the circumstances, the Court considers it appropriate to move this case forward, at least with respect to the exhaustion argument presented in defendant's pending motion.
The other Second Circuit decision referred to by defendants (Lawrence, 238 F.3d 182), was vacated by the Supreme Court and remanded to the Second Circuit in light of Porter. See Goord v. Lawrence, 122 S.Ct. 1200 (2002).
Therefore, it is hereby ORDERED that:
1. No later than April 30, 2002, defendants shall supplement their brief on their motion to dismiss, in order to address the applicability to this case of the Supreme Court's decision in Porter v. Nussle.
2. No later than May 31, 2002, and regardless of whether counsel has yet appeared for plaintiff, plaintiff shall respond to the portion of defendants' motion that addresses whether plaintiff has adequately exhausted his administrative remedies.
3. No later than June 14, 2002, defendants shall serve and file reply papers, if any, with respect to the exhaustion issue.
4. The remaining portions of defendants' motion to dismiss, as well as all fact discovery, shall continue to be held in abeyance, pending the appearance of counsel for plaintiff or further Order of this Court.
SO ORDERED