Opinion
No. 00 Civ. 7167 (LTS)(KNF)
June 13, 2003
MEMORANDUM ORDER
Matthew Delio ("Delio"), an incarcerated pro se plaintiff, brings this action pursuant to 42 U.S.C. § 1983 seeking monetary damages for injuries allegedly suffered due to the failure of Defendant Morgan (who was a Correction Officer at Downstate Correctional Facility at the time Plaintiff's injuries were allegedly suffered) to protect him from attack by another inmate, and for Morgan's use of force to restrain Delio during the attack. Defendant moves, pursuant to the Federal Rules of Civil Procedure 12(b)(1), 12(b)(6) and 12(h)(3), to dismiss the Amended Complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted. The Court has considered thoroughly all submissions in connection with the instant motion. For the following reasons, Defendants' motion is granted.
Background
The following facts are alleged in the Amended Complaint. While at Downstate Correctional Facility, Plaintiff was assaulted by another inmate. Defendant Morgan, the only officer at the scene, physically separated Plaintiff and his assailant. Defendant Morgan pinned Plaintiff against a wall to restrain him. At that time, Plaintiff notified Morgan that the assailant had a "razor weapon." While Defendant was still pinned against the wall, the assailant reached around Defendant Morgan, striking Plaintiff on the back of his head. Defendant Morgan then went for help, at which time Plaintiff claims to have been assaulted with the assailant's weapon.
The assailant then handed the weapon to another inmate and recommenced his attack on the Plaintiff. Plaintiff alleges that, despite his requests, he received no further assistance and that Morgan stood by for the duration of his attack.
Plaintiff alleges that, as a result of the other inmate's attack on him, he sustained facial injury, a laceration to his left thumb, and a head contusion. Medical attention was required for Plaintiff's injuries. Sutures were recommended for Plaintiff's facial injuries, but he refused the treatment. Plaintiff was issued a misbehavior report for fighting.
Shortly after the attack, Delio was transferred from Downstate Correctional Facility ("Downstate") to Sullivan Correctional Facility ("Sullivan"). Delio concedes that, although there was a prisoner grievance procedure in place, he did not file a grievance relating to the allegations in the complaint. On May 4, 2001, Plaintiff filed a request to file a late grievance.
Plaintiff commenced this action on September 22, 2000, and filed the Amended Complaint on May 16, 2001. Defendant Morgan moved to dismiss the Amended Complaint on September 5, 2001.
By Order dated April 25, 2001, this action was dismissed as to Defendant Wohleab for failure to prosecute.
Discussion
The Prison Litigation Reform Act of 1995 (the "PLRA") provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any Federal law, by a prisoner confined in any jail, prison, or correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C.A. § 1997e(a) (West 1994 Supp. 2002). In Porter v. Nussle, 534 U.S. 516 (2002), the Supreme Court held that "[section] 1997e(a)'s exhaustion requirement applies to all prisoners seeking redress for prison circumstances or occurrences." 534 U.S. at 520. "All `available remedies must now be exhausted; those remedies need not meet federal standards, nor must they be `plain, speedy, and effective.' Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit." Id. at 524 (citing Booth v. Churner, 532 U.S. 731, 739-41 (2001)).New York State has a three-step administrative process for prisoner grievances that prisoners must exhaust before filing a complaint in federal court.
First, an inmate must file a complaint with the Inmate Grievance Resolution Committee ("IGRC") within 14 days of the alleged event. The IGRC must then investigate and may resolve the issue informally within seven days. If there is no informal resolution, a hearing is held, and the inmate may appeal to the superintendent of the facility within four days of the IGRC's action. Finally, after receiving a response from the superintendent, the prisoner may appeal that decision to the Central Office Review Committee ("CORC") within four days of its receipt. The CORC, in turn, must render a decision within 20 days.
Harris v. Totten, 244 F. Supp.2d 229, 233 (S.D.N.Y. 2003).
Defendant contends that the Amended Complaint must be dismissed because Plaintiff did not exhaust all available administrative remedies before bringing this action. Plaintiff argues that his claims are not subject to the PLRA's exhaustion requirement because they concern an isolated incident and not a policy or regulation.
The claims at issue here, failure-to-protect and the use of excessive force, both relate to prison conditions within the meaning of the PLRA, and thus are subject to the exhaustion requirement. See Porter v. Nussle, 534 U.S. at 532 ("the 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"); Santiago v. Meinsen, 89 F. Supp.2d 435, 440 (S.D.N.Y. 2000) (finding that plaintiff's failure-to-protect claim was subject to PLRA exhaustion requirement). Delio also argues that, because he seeks damages, a remedy unavailable in the inmate grievance process, he is not required to exhaust. Porter v. Nussle forecloses this argument. As noted above, the Supreme Court has held that exhaustion is required even if a prisoner is seeking relief "not available in grievance proceedings, notably money damages." Porter v. Nussle, 534 U.S. at 524.
Plaintiff also asserts that the PLRA's exhaustion requirement is not jurisdictional, and "may be waived under appropriate circumstances." (Pl.'s Aff. in Opp. ¶ 2.) District courts within this circuit have reached contrary conclusions about the nature of the PLRA's exhaustion requirement. Compare Arnold v. Goetz, 245 F. Supp.2d 527, 531-533 (S.D.N.Y. 2003) (collecting cases and joining "chorus of voices" concluding that the PLRA's exhaustion requirement is an affirmative defense and not a jurisdictional prerequisite), with Harris v. Totten, 244 F. Supp.2d at 231 ("when a defendant moves for dismissal on the ground that the plaintiff has failed to exhaust administrative remedies, the defendant is raising a challenge to the court's jurisdiction"), and Long v. Lafko, No. 00 Civ. 723, 2001 WL 863422, *2 (S.D.N.Y. July 31, 2001) (plaintiff's failure to exhaust all administrative remedies "deprives this Court of subject matter jurisdiction").
Under either a jurisdictional or affirmative defense interpretation of the PLRA exhaustion requirement, however, the Amended Complaint must be dismissed, because Defendant has asserted the defense and Plaintiff's failure to exhaust appears on the face of the pleadings. See Torrence v. Pesanti, 239 F. Supp.2d 230, 233 (D.Conn. 2003) (court should dismiss if failure to dismiss is "readily apparent from plaintiff's pleadings and/or attachments"); McCoy v. Goord, No. 01 Civ. 3133, 2003 WL 1479232, *12 (S.D.N.Y. March 25, 2003) (same).
In his original complaint, Plaintiff represented that he had not presented the facts relating to the complaint in the prisoner grievance procedure. See Original Complaint ¶ II.B. The Amended Complaint does not allege any facts to the contrary. In his opposition to the instant motion, Plaintiff asserts he has filed a request to file a late grievance pursuant to 7 NYCRR § 701.7(a)(1). Exhaustion subsequent to the filing of a complaint does not, however, satisfy the PLRA exhaustion requirement. See Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001) (PLRA mandates exhaustion of all administrative remedies prior commencing § 1983 action; "[s]ubsequent exhaustion after suit is filed therefore is insufficient"). Plaintiff's assertion that he could not grieve his claims because he was transferred to Sullivan is similarly without merit. See Santiago v. Meinsen, 89 F. Supp.2d at 440-441 (dismissing action for failure to exhaust where plaintiff's excuse for not grieving was his transfer to a different facility three weeks after the incident at issue); 7 NYCRR § 701.3(k)(2) "[an] institutional grievance brought by an inmate who was transferred . . . must be investigated and brought to an Inmate Grievance Review Committee ("IRGC") hearing at complainant's original facility." Accordingly, Plaintiff's Amended Complaint must be dismissed for failure to exhaust his administrative remedies.
Conclusion
For the foregoing reasons, Defendants' motion is granted and the Amended Complaint is hereby dismissed without prejudice to the commencement of another lawsuit following the exhaustion of administrative remedies.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962).
SO ORDERED.