Opinion
02-CV-833S.
July 28, 2004
DECISION AND ORDER
I. INTRODUCTION
On November 22, 2002, pro se Plaintiff Jabbaris Dove initiated this action pursuant to 42 U.S.C. § 1983 by filing a Complaint with the Clerk of the Court. Presently before this Court is Defendants' Motion for Summary Judgment, filed on January 26, 2004. For the following reasons, Defendants' Motion for Summary Judgment is granted.
Cognizant of the distinct disadvantage that pro se litigants face, federal courts routinely read pro se submissions liberally, and interpret them to raise the strongest arguments that they suggest. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994); Mikinberg v. Baltic S.S. Co., 988 F.2d 327, 330 (2d Cir. 1993). This Court will do no differently in assessing Plaintiff's opposition to Defendants' motion.
In support of their Motion for Summary Judgment, Defendants filed the following documents: Memorandum of Law in Support; Statement of Undisputed Facts; Declaration of Terry Dyson with attached exhibits; Declaration of Stephen F. Gawlik with attached exhibits; and a Reply Memorandum of Law in Support with attached exhibits. In opposition to Defendants' motion, Plaintiff filed Plaintiff's Affidavit in Opposition with attached exhibits and a Statement of Undisputed Facts.
II. BACKGROUND
A. The August 26, 2000 Incident
On August 26, 2000, Plaintiff was present in the Wende Correctional Facility visiting room with Janell Blake. (Pl.'s Statement Undisputed Facts ¶ 1.) At the conclusion of the visit, Plaintiff and Ms. Blake approached the officers' desk where a verbal altercation ensued related to the return of Plaintiff's and Ms. Blake's identification. (Id. ¶¶ 2-7.) The verbal altercation continued as Plaintiff proceeded to the room where inmates are processed from the visiting area back into the facility. (Id. ¶¶ 8-10.) In particular, Defendant Fucher called Plaintiff a "nappy headed bastard," to which Plaintiff replied, "your mother." (Id. ¶¶ 8-10.)
When Plaintiff entered the processing room, Defendants Holmes, Fucher and Crawley were inside. (Id. ¶¶ 12-13.) The verbal altercation escalated inside the processing room, culminating in Defendant Fucher allegedly punching Plaintiff in the forehead and Plaintiff physically striking back at Defendant Fucher. (Id. ¶¶ 14-20.) At one point, Plaintiff fled from the processing room back into the visiting area, where he was approached by corrections officers and handcuffed. (Id. ¶¶ 21-25.) Plaintiff alleges that after he was returned to the processing room, all the named Defendants (except Defendant Christian) beat and kicked him in the kidneys and all over the left side of his body for approximately twenty seconds until Defendant Christian yelled "that's enough." (Id. ¶¶ 27-28.)
B. Plaintiff's Filing of Grievances
On September 11, 2000, Plaintiff filed grievance No. 15035-00 with the Grievance Clerk at Wende related to the incident described above. (Dyson Decl. Ex. B.) Specifically, Plaintiff alleged that his ribs were broken during the altercation and that he did not receive a prescription pain killer as he requested. (Dyson Decl. ¶ 8; Dyson Decl. Ex. B.) As a remedy, Plaintiff requested that he receive medical treatment and a prescription pain killer. (Dyson Dec. Ex. B.)
Two days later, on September 13, 2000, the Inmate Grievance Resolution Committee ("IGRC") held a hearing and found that an August 28, 2000 X-ray showed no evidence of a rib fracture and that Plaintiff had received a prescription for painkillers on September 6, 2000, and therefore decided that "[g]rievant's request for medical attention and medication has been acted upon." (Dyson Decl. Ex. B.) Plaintiff did not appeal this decision. (Dyson Dec. ¶ 9.)
On April 17, 2002, nearly two years after the incident in the processing room, Plaintiff mailed a grievance letter to the IGRC Hearing Officer at the Wende Correctional Facility via certified mail. (Pl.'s Aff. ¶ 6; Pl.'s Aff. Ex. A.) In the grievance, Plaintiff again complained of the alleged August 26, 2000 assault, but this time grieved the use of excessive force, rather than the denial of medical care. Plaintiff alleged that he knew which officers were in the room, but not which officers actually took part in the beating. As a remedy, Plaintiff asked that an investigation be conducted to determine the identities of the guards who assaulted him. Moreover, Plaintiff stated that he was submitting the grievance after the 14-day time limit because he did not realize that he had to exhaust this type of claim until after Booth was decided. (Id.)
Plaintiff sent an identical grievance to the IGRC Hearing Officer again on May 6, 2002. (Pl.'s Aff. ¶ 6; Pl's Aff. Ex. A.)
Referring to the United States Supreme Court's decision inBooth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001).
In response to Plaintiff's grievance, Mr. Watson, the Inmate Grievance Program ("IGP") Supervisor, sent Plaintiff a letter dated May 8, 2002. (Pl.'s Aff. ¶ 7; Ex. C.) Therein, Mr. Watson informed Plaintiff that he had contacted the Central Office, and that Mr. Eagen, the Director of the IGP, had reviewed Plaintiff's grievance with the Counsel's Office. (Id.) Mr. Watson explained that it had been determined that Plaintiff's grievance would not be filed because Plaintiff had failed to provide an adequate mitigating circumstance to excuse the untimeliness of his grievance. (Id.)
Thereafter, on May 13, 2002, Plaintiff resubmitted his excessive force grievance to the IGRC Hearing Officer at Wende and reiterated his explanation that he had not filed the grievance earlier because he was unaware that he had to do so until Booth was decided. (Pl.'s Aff. ¶ 8; Pl.'s Aff. Ex. D.) In response, Plaintiff received another letter from Mr. Watson acknowledging receipt of the grievance and providing the same reason given in the May 8, 2002 letter for refusing to file the untimely grievance. (Pl.'s Aff. ¶ 10; Pl.'s Aff. Ex. F.)
By letter dated May 28, 2002, Plaintiff appealed the IGP Supervisor's refusal to file the late grievance to the Superintendent of Wende. (Pl.'s Aff. ¶ 11; Pl.'s Aff. Ex. G.) Plaintiff alleges that he did not receive a response to his letter. (Pl.'s Aff. ¶ 12.)
Finally, Plaintiff appealed the IGP Supervisor's refusal to file the late grievance in a letter to the Central Office Review Committee ("CORC") Supervisor in Albany, dated June 25, 2002. (Pl.'s Aff. ¶ 13; Pl.'s Aff. Ex. I.) In response, Plaintiff received a letter from Mr. Eagen, the Director of the IGP, dated August 15, 2002, acknowledging receipt of the June 25, 2002 letter and asserting that there was no grievance on file with either the IGRC or the Superintendent's office regarding the alleged assault. (Pl.'s Aff. ¶ 14; Ex. K.) Mr. Eagen further instructed Plaintiff that pursuant to Directive #4040, all information concerning a grievance or appeal should be submitted to the facility IGRC rather than directly to the CORC. (Id.)
C. Plaintiff's Complaint and Defendants' Motion for Summary Judgment
Plaintiff filed his Complaint in this action on November 22, 2002. He requests damages from Defendants under 42 U.S.C. § 1983 stemming from the August 26, 2000 incident during which he alleges he was beaten by Defendants in violation of his Eighth Amendment right to be free from cruel and unusual punishment.
Defendants now move for summary judgment on the basis that Plaintiff failed to exhaust his administrative remedies as required under 42 U.S.C. § 1997 e(a). Defendants contend that because the IGP refused to accept Plaintiff's untimely grievance related to the alleged use of excessive force, Plaintiff is unable to exhaust his administrative remedies, and is therefore barred from bringing this excessive force claim in federal court.
In response, Plaintiff concedes that his grievance alleging excessive force is untimely. However, he contends that this untimeliness should be excused because he was unaware that he was required to exhaust his administrative remedies for an excessive force claim seeking damages until the Supreme Court decided Booth after the incident in question. Moreover, Plaintiff asserts that even though the IGP refused to accept the untimely grievance, he sufficiently exhausted his administrative remedies by first submitting the grievance to the IGRC, then appealing to the Wende Superintendent, and then finally appealing to the CORC.
Booth was decided on May 29, 2001.
III. DISCUSSION AND ANALYSIS
A. Summary Judgment StandardRule 56 of the Federal Rules of Civil Procedure provides that summary judgment is warranted where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). A "genuine issue" exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under governing law." Id.
In deciding a motion for summary judgment, the evidence and the inferences drawn from the evidence must be "viewed in the light most favorable to the party opposing the motion." Addickes v. S.H. Kress Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970). "Only when reasonable minds could not differ as to the import of evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The function of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.
B. Discussion
As a general rule, administrative exhaustion is not required of individuals pursuing civil rights claims pursuant to 42 U.S.C. § 1983. See Patsy v. Bd. of Regents of Fla., 457 U.S. 496, 516, 102 S.Ct, 2557, 2568, 73 L.Ed.2d 172 (1982). However, "in an attempt to reduce the perceived burdensome flow of prisoner litigation," Congress passed the Prison Litigation Reform Act of 1995, requiring state prisoners to exhaust all administrative remedies available to them as a prerequisite to filing suit in federal court under § 1983. McCoy v. Goord, 255 F.Supp.2d 233, 240 (S.D.N.Y. 2003); see 42 U.S.C. § 1997 e(a).
Forty-two U.S.C. § 1997 e(a) provides as follows:
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.
In Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 1825, 149 L.Ed.2d 958 (2001), the Supreme Court held that the exhaustion requirement applies even when a prisoner seeks relief that is not available in administrative grievance proceedings.See Booth, 532 U.S. at 741. More recently, in Porter v. Nussle, 534 U.S. 516, 524-25, 122 S.Ct, 983, 988, 152 L.Ed.2d 12 (2002), the United States Supreme Court resolved the issue of whether § 1997 e(a) requires administrative exhaustion for only suits raising claims applicable to prisoners generally, or to all prisoner suits, including those alleging single incidents of misconduct by state actors. See Porter, 534 U.S. at 520. After examining the history and intent of § 1997 e(a), the Supreme Court held that the "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." Id. at 532.
In New York, in order for an inmate to exhaust his administrative remedies he must first submit a complaint to the IGRC within 14 calendar days of an alleged occurrence. 7 N.Y.C.C.R. § 701.7 (a)(1) (2003). However, "exceptions to this time limit may be approved by the IGP supervisor based on mitigating circumstances (e.g., attempts to resolve informally by the inmate, referrals back to the IGP by the courts, etc.)."Id. The inmate can appeal the decision of the IGRC first to the facility Superintendent, and then to the CORC. Id. at (b)-(c).
Courts in this circuit have generally held that "failure to file a timely grievance constitutes failure to exhaust administrative remedies as required by the PLRA." Cole v. Miraflor, No. 02 Civ. 9981, 2003 WL 21710760, at *2 (S.D.N.Y. July 23, 2003); see Petit v. Bender, No. 99 Civ. 0969, 2003 WL 22743485, at *5 (S.D.N.Y. Nov. 19, 2003); Long v. Lafko, 254 F.Supp.2d 444, 447-48 (S.D.N.Y. 2003); Scott v. Gardner, 287 F.Supp.2d 477, 489 (S.D.N.Y. 2003); Patterson v. Goord, No. 02 Civ. 759, 2002 WL 31640585, at *1 (S.D.N.Y. Nov. 21, 2002); contra Rivera v. Goord, 253 F.Supp.2d 735, 753 (S.D.N.Y. 2003) (requiring IGP to consider untimely grievance on merits since "[i]t would be highly unfair to permit DOCS [Department of Correctional Services] to now reject Rivera's grievances as untimely, when he was not required to exhaust when he filed suit, at the same time that DOCS can assert nonexhaustion as a defense").
When the IGP refuses to accept and file an untimely grievance, it becomes impossible for an inmate to exhaust his administrative remedies, and any federal claims that would have arisen from the incident alleged in the untimely grievance are barred from judicial adjudication. See Cole, 2003 WL 21710760, at *2;Petit, 2003 WL 22743485, at *5; Long, 254 F.Supp.2d at 447-48;Scott, 287 F.Supp.2d at 489; Patterson, WL 31640585, at *1.
While "corrections officials are entitled to strict compliance with administrative procedures," some courts have recognized that in exceptional circumstances, equity allows for waiver of the exhaustion requirement. Rivera, 253 F.Supp.2d at 746-47 (discussing categories of cases where exhaustion waived). For instance, "[a] plaintiff may proceed despite nonexhaustion where he has been `led to believe by prison officials that his alleged incident was not a "grievance matter" and assured that his claims were otherwise investigated.'" Rivera, 253 F.Supp.2d at 746 (quoting O'Connor v. Featherston, No. 01 Civ. 3251, 2002 WL 818085, at *2 (S.D.N.Y. Apr. 29, 2002)).
Moreover, the exhaustion requirement may be waived "where a plaintiff has been led to believe that administrative remedies were unavailable." Id. at 747. The exhaustion requirement may also be waived where "officials prevented [the plaintiff] from utilizing a grievance procedure." Arnold v. Goetz, 245 F.Supp.2d 527, 537 (S.D.N.Y. 2003). Finally, the exhaustion requirement may be waived where "the state's time to respond to the grievance has expired." O'Connor, 2002 WL 818085, at *2.
C. Analysis
Plaintiff first argues that he was unaware that he was required to exhaust his administrative remedies on his excessive force claim arising out of the alleged August 26, 2000 incident untilBooth was decided. To the extent that Plaintiff challenges the retroactive application of Booth, his challenge fails. It is a settled matter of law that Booth and Porter apply retroactively. See Britt v. Dep't of Corr., No. 99 Civ 1672, 2003 WL 1338684, at *1 (S.D.N.Y. Mar. 18, 2003) ("Porter andBooth apply retroactively."); see also Lawrence v. Goord, 304 F.3d 198, 200 (2d Cir. 2002) (applying Porter retroactively); LaBounty v. Johnson, 253 F.Supp.2d 496, 499 (W.D.N.Y. 2003) (same).
Continuing to read Plaintiff's pleadings liberally, he next argues that he should be deemed to have exhausted his administrative remedies as a matter of equity. For example, Plaintiff requests that this Court take "judicial notice" of the fact that he was unaware that he had to grieve his excessive force claim until after Booth was decided and therefore excuse his procedural failure. As noted, some courts in this circuit have recognized that equity may require that an inmate be allowed to proceed in federal court even when he has not technically exhausted his administrative remedies. See, e.g., Rivera, 253 F.Supp.2d at 746-47; Arnold, 245 F.Supp.2d at 537;O'Connor, 2002 WL 818085, at *2. However, the general rule is that courts may not dispense with the exhaustion requirement.See LaBounty, 253 F.Supp.2d at 499 ("Because Congress specifically mandated that all prisoners exhaust their administrative remedies prior to bringing suit . . . this Court lacks the authority to waive that requirement.").
Even assuming that this Court could waive the exhaustion requirement, Plaintiff has failed to offer a compelling reason for it to do so. Plaintiff does not allege that he was misled by prison officials, denied access to the grievance process, or that the state's time to respond has expired. Rather, he asserts that he did not realize that he had to exhaust his administrative remedies for a claim seeking damages until after Booth was decided. While this Court has no basis upon which to disbelieve Plaintiff on this point, the fact remains that it does not provide a valid basis upon which to waive the exhaustion requirement.
Finally, Plaintiff argues that he exhausted his administrative remedies by appealing the refusal to file his untimely 2002 grievance to the Superintendent and then to the CORC. Again, Plaintiff's argument is unpersuasive. "Courts in this jurisdiction have regularly held that failure to timely file an appeal during the administrative grievance process, followed by a subsequent denial of access by CORC due to untimeliness, will not constitute exhaustion." Petit, 2003 WL 22743485, at *5. Accordingly, Plaintiff did not exhaust his administrative remedies.
IV. CONCLUSION
For the reasons stated above, Plaintiff has failed to exhaust his administrative remedies and has not demonstrated exceptional circumstances that warrant waiver of the exhaustion requirement. Defendants' Motion for Summary Judgment on the grounds that Plaintiff failed to exhaust his administrative remedies will therefore be granted.
V. ORDERS
IT HEREBY IS ORDERED, that Defendants' Motion for Summary Judgment (Docket No. 13) is GRANTED.
FURTHER, that the Clerk of the Court is directed to take the steps necessary to close this case.
SO ORDERED.