TAPP v. KITCHEN

Full title: SEAN TAPP, Plaintiff, v. C.O. KITCHEN, C.O. KRAWCZYK, C.O. ANDERSON, and…

Court: United States District Court, W.D. New York

Date published: Oct 26, 2004

No. 02-CV-6658 CJS (W.D.N.Y. Oct. 26, 2004)

Opinion

No. 02-CV-6658 CJS.

October 26, 2004

Sean Tapp, pro se, Pine City, New York, for plaintiff.

Emil J. Bove, Jr., Esq., NYS Attorney General's Office, Department of Law, Rochester, NY, for defendants.

DECISION AND ORDER

CHARLES SIRAGUSA, District Judge

INTRODUCTION

This is an action pursuant to 42 U.S.C. § 1983, brought by the plaintiff, a prison inmate, against various employees of the New York State Department of Correctional Services. Now before the Court are two motions: 1) a motion for summary judgment [#29] by defendants Kitchen and Krawczyk; and 2) a cross-motion for summary judgment [#33] by the plaintiff. For the reasons that follow, defendants' motion is granted, plaintiff's motion is denied, and this action is dismissed.

BACKGROUND

At all relevant times plaintiff was an inmate at Wende Correctional Facility ("Wende"), where defendants Namon Kitchen ("Kitchen") and Jeffrey Krawczyk ("Krawczyk") were employed as Corrections Officers. In this action plaintiff alleges that defendants assaulted him in retaliation for grievances he filed against them. More specifically, on or about January 3, 2000, plaintiff filed inmate grievance number WDE-14342-00 against a Corrections Officer Evans ("Evans") after she made plaintiff cut short a telephone call. Plaintiff, claiming that he was being harassed, stated: "I ask that I be removed from this block before retaliation or some trumped up charges be pinned on me."

The following day, January 4, 2000, plaintiff sent a written complaint, designated as a "Formal Complaint Under Civil Service Law, § 75(1)(2)(3)," to Edward Donnelly ("Donnelly"), the Superintendent of Wende. This complaint concerned alleged harassment and threats by various corrections officers in B-Block, such as the telephone incident with Evans. Plaintiff also alleged that Evans was retaliating against him "by getting her co-workers to deny [plaintiff] rec, showers, [and] phone in retaliation."¹ The complaint also alleged that on December 31, 1999, a Captain Dial sexually assaulted him during a frisk, and then later denied him recreation. The complaint further referred to defendant Kitchen, who, like plaintiff, is African-American, as follows:

1 Any such retaliation could only have been occurring for less than one day, since plaintiff's grievance against Evans was filed on January 3, 2000, and he was writing the second complaint the following day.

Another employee that I'm having problems with is C.O. Kitchett [ sic], a officer who grabbed me by my shirt [and] started hollering at me while spit flew from his mouth to my face. This took place on 1/3/00 during the 7-3 tour. He C.O. Kitchett called me a dumbass nigger cause I asked him why he didn't open my cell for school [illegible]. I was called a bastard [and] other degrading names.²

2 The record suggests that on the occasion in question, plaintiff referred to C.O. Kitchen as "Brother," which caused Kitchen to become angry and to explain to plaintiff that he was not, in fact, plaintiff's "brother." See, e.g., Defs. Response to Pls. First Discover Request, Ex. E.

Defs. Response to Pls. Motion to Compel, Ex. A. Plaintiff sent this "civil service law complaint" to Donnelly, to Glenn Goord, the Commissioner of the New York State Department of Correctional Services ("DOCS"), as well as to various individuals who were not part of DOCS. In this regard, plaintiff states:

I did present the facts relating to this complaint in the state prisoner grievance procedure. I filed a grievance [and] a 114A civil petition that I had sent to Chief Justice Frank Santimour, the Honorable Edwin Meese, of the U.S. Justice Department, Walter Broadnax Attorney General Dept. of Civil Service along with Glenn S. Goord [and] Superintendent Donnelly.

Motion to Amend Complaint [#22].³

3 Viewing the record as a whole, it is clear that plaintiff filed this grievance with Donnelly and with the other aforementioned individuals prior to the alleged assault on January 14, 2000. See, e.g., Defs. Response to Pls. First Discovery Request [#17], Ex. C, Transcript of Plaintiff's Tier III hearing, pp. 12, 28; Pl. Notice of Motion to Compel Discovery [#34], ¶¶ 1-4; Document [#42], ¶¶ 1-10.

Donnelly apparently referred both the inmate grievance and the "civil service complaint" to Deputy Superintendent for Security Skinner, who in turn had a Sergeant Madden investigate plaintiff's accusations. On January 8, 2000, Madden reported to Skinner that he had investigated plaintiff's claims, by conducting numerous interviews with staff and inmates, and had determined that plaintiff's claims were baseless. On January 12, 2000, Donnelly denied plaintiff's grievance. Plaintiff appealed, and on February 23, 2000, the Central Office Review Committee ("CORC") denied plaintiff's appeal.

Plaintiff alleges that on January 11, 2000, he filed another grievance complaint against Kitchen, after Kitchen threatened him. However, the record contains no details of the alleged threat, nor any documentary proof that plaintiff actually filed such a grievance.

On January 14, 2000, plaintiff alleges that Kitchen, Krawczyk, a defendant Corrections Officer Anderson ("Anderson"), and an unidentified defendant Corrections Officer John Doe ("Doe") attacked him and beat him with batons. Defendants acknowledge that force was used to restrain plaintiff. However, Kitchen contends that the incident occurred after he observed plaintiff walking with a bulge in his pocket . Kitchen and plaintiff agree that Kitchen directed plaintiff to stop and assume a frisk position, and that plaintiff refused, and attempted to get past Kitchen. Kitchen maintains that plaintiff plowed into him with his shoulder, and that he and plaintiff fell to the floor, with plaintiff on top of Kitchen. Kitchen contends that he then drew his baton and struck plaintiff in the face, at which time other officers, including defendant Krawczyk, came and helped him restrain plaintiff.

Following the incident, Kitchen wrote a misbehavior report against plaintiff, charging him with infractions including assault on staff and creating a disturbance. During a Tier Three Disciplinary Hearing ("tier hearing") on these charges, plaintiff argued that he was innocent, and that Kitchen and the other defendants had "set him up" in retaliation for grievances that he had filed prior to January 14, 2000. See, Transcript of Tier Hearing, Defs. Response to Pls. First Discovery Request, Ex. C, pp. 13-14, 19, 28, 32-33, 37. Plaintiff was found guilty of creating a disturbance and assaulting staff, and not guilty of refusing a direct order.

In addition to complaining about the incident during his tier hearing proceedings, plaintiff also claims that he filed additional complaints at the facility shortly after the January 14, 2000, incident. At his deposition, plaintiff testified that he filed an inmate grievance concerning the alleged assault, as well as another "civil service complaint," but never received a response to either. Plaintiff has no documentary proof that he filed either a grievance or a civil service complaint after the January 14^th incident. In this regard, although plaintiff indicated at his deposition that he would provide defense counsel with such documentation, the record contains no evidence that he did so. See, Pl. Dep. p. 185; Pl. Motion to Compel Discovery [#34]. Assuming, however, that plaintiff filed such complaints following the January 14, 2000 incident, it is undisputed that he never attempted to appeal or otherwise pursue them further through the Inmate Grievance Program ("IGP").⁴

4 As will be discussed further below, plaintiff claims that he exhausted his administrative remedies in other ways, but here the Court is referring solely to the three-step IGP procedures for exhausting grievances.

At some point on or about April 6, 2000, plaintiff also complained to the Office of the New York State Inspector General about the January 14^th incident. See, Id. at Ex. F. In connection with that complaint, on June 27, 2000, an Investigator V.G. Genter ("Genter") from the Inspector General's office interviewed plaintiff. Id. According to Genter's report, during the interview plaintiff admitted that prior to the alleged assault, Kitchen had directed him to stop walking and to "get on the wall," and that plaintiff said that he was not going to comply with the order and kept walking. Plaintiff further stated that Kitchen then attempted to restrain him, and that during the ensuing struggle, plaintiff threw an officer against a table and continued to fight as officers were attempting to restrain him. Id. In his completed investigative report dated September 15, 2000, Genter concluded that plaintiff's complaint was unsubstantiated and he recommended that the Inspector General's case be closed. Def. Reply Affirmation [#53], Ex. E. Plaintiff claims he was never advised of the outcome of Genter's investigation, and never heard anything further from the Inspector General's office. Pls. Opposition to Defs. Summary Judgment Motion [#32], p. 3.

Plaintiff commenced this action on December 18, 2002. At that time, plaintiff named Kitchen and Krawczyk as defendants, as well as a Corrections Officer Anderson and a "John Doe" Corrections Officer. In an Order [#7] filed on March 19, 2003, the Court ordered that plaintiff identify the John Doe Corrections officer "through discovery as soon as possible, and then apply . . . for an order directing amendment of the caption." Subsequently, on January 14, 2004, following discovery, plaintiff filed a motion [#22] to amend the complaint. In that motion plaintiff indicated that he wished to add Evans and a Corrections Officer Macneil as defendants.

Defendants filed the subject summary judgment motion [#29] on January 29, 2004. Defendants contend that they are entitled to summary judgment, because plaintiff did not exhaust his administrative remedies prior to commencing this action, as required by 42 U.S.C. § 1997e(a). In that regard, they assert that plaintiff never utilized the Inmate Grievance Program ("IGP") procedures to file a grievance concerning the alleged assault on January 14, 2000, or to appeal to either the facility superintendent or to the Central Office Review Committee ("CORC"). On February 6, 2004, plaintiff filed an opposition to defendants' motion, as well as a cross-motion [#33] for summary judgment. Thereafter, plaintiff filed a motion [#34] to compel discovery. Because it appeared that the discovery being sought pertained to the summary judgment motions, the Court held the summary judgment motions in abeyance pending the resolution of both the motion to compel and the motion to amend the complaint by the Magistrate Judge assigned to handle pretrial matters in this case. Subsequently the parties reached an agreement whereby plaintiff agreed to withdraw both his motion to compel and his motion to amend the complaint, and defendants agreed to conduct an additional search for documentation pertaining to plaintiff's attempts to exhaust his administrative, and to turn over any such additional documents to plaintiff. See, Order [#46]. The consent order specifically stated that plaintiff could renew both the motion to compel and the motion to amend provided that his complaint survived the pending motions for summary judgment. Id. As a result of plaintiff withdrawing his motion to amend the complaint, the only two defendants remaining in the action are Kitchen and Krawczyk.⁵

5 Corrections Officer Anderson named in the complaint was never served and is not a party to the action.

Shortly after plaintiff withdrew his motions to amend and to compel, the undersigned issued a Motion Scheduling Order [#49] regarding the summary judgment motions. On July 6, 2004, plaintiff filed a motion [#50] to have this case reassigned to a new district judge. On July 30, 2004, the Court conducted a conference, with plaintiff participating by telephone, to discuss this latest motion, during which it became apparent that plaintiff's dissatisfaction with the Court stemmed from his mistaken belief that the Clerk of the Court had not filed certain exhibits which he had submitted in support of his cross-motion for summary judgment. Accordingly, the Court denied the application to have a new judge reassigned. See, Order [#59]. The Court has now thoroughly considered the parties' submissions concerning the motions for summary judgment.

DISCUSSION

The standard for granting summary judgment is well established. Summary judgment may not be granted unless "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996) ( citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)), cert denied, 517 U.S. 1190 (1996).

The burden then shifts to the non-moving party to demonstrate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To do this, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249. Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993). The parties may only carry their respective burdens by producing evidentiary proof in admissible form. FED. R. CIV. P. 56(e). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). A court should read a pro se litigant's papers liberally, interpreting them "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).

Plaintiff brings this action pursuant to 42 U.S.C. § 1983, under which a plaintiff must allege (1) that the challenged conduct was attributable at least in part to a person acting under color of state law, and (2) that such conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993). Pursuant to the Prison Litigation Reform Act (" PLRA"), 42 U.S.C. § 1997e(a), "[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." In the New York State prisons, those administrative remedies are as follows:

The regular DOCS grievance procedure consists of three tiers. First, the inmate files a level 1 grievance (either on an Inmate Grievance Complaint Form, or on plain paper if the form is not readily available) with the Inmate Grievance Resolution Committee ("IGRC"), which is composed of fellow inmates and prison officials. The IGRC must convene a hearing, if necessary, within seven working days, and issue a written decision within two days of the hearing. Next, the inmate has four days to appeal the IGRC decision to the superintendent of the facility, who must respond within ten days and must provide "simple directions" on how to appeal to the next level, the Central Office Review Committee ("CORC"). The inmate's final opportunity for resolution of his grievance is to appeal to the CORC within four working days of the superintendent's decision. The CORC then has 20 working days to render a decision. 7 N.Y.C.R.R. § 701.7(c)(4).

DOCS also provides an "expedited" process for complaints of inmate harassment or other misconduct by prison employees. The requirements of this expedited procedure are contested by the parties to this case. At the time the incidents alleged by the plaintiff occurred, relevant DOCS regulations stated:

A. An inmate who feels that he has been the victim of employee misconduct or harassment should first report such occurrences to the immediate supervisor of that employee. This does not preclude submission of a formal grievance.

B. All allegations of employee misconduct shall be given a grievance calendar number and recorded in sequence with all other grievances. . . . All documents submitted with the allegation must be forwarded to the superintendent by the close of business that day.

C. The superintendent or his/her designee shall promptly determine whether the grievance, if true, would represent a bona fide case of harassment as defined in section II above. If not, then it shall be returned to the IGRC for normal processing.

DOCS Directive 4040 (June 8, 1998), at 11; see also 7 N.Y.C.R.R. § 703 (1998).

The Directive goes on to require, in cases where "the grievance is a bona fide harassment issue," that the superintendent initiate an investigation and render a decision within twelve days. DOCS Directive 4040 (June 8, 1998), at 11. If the Superintendent fails to respond within twelve days, the inmate may appeal to the CORC for relief. Id.

Hemphill v. New York, 380 F.3d 680, 682-683 2nd Cir. 2004) (footnotes omitted). As for the type of investigation to be initiated by the superintendent in cases where there is a bona fide harassment issue, the directive states that it shall be "an in-house investigation," "an investigation by the Inspector General's Office," or "an investigation by the New York State Police, Bureau of Criminal Investigation." Directive 40404 (June 8, 1998) at 11.

Directive 4040, as it existed at the time of the events at issue in this lawsuit, did not make resort to the IGP mandatory. Rather, the Directive noted that the IGP was "intended to supplement, not replace, existing formal or informal channels of problem resolution." The Directive further stated that,

[u]nder this program, any inmate who is personally affected by an issue for which there is no avenue for redress or correction may address a complaint to . . . the Inmate Grievance Resolution Committee (IGRC). If unsatisfied, the inmate may appeal to the facility superintendent; and if still unsatisfied, may appeal to the Central Office Review Committee (CORC).

Directive 4040 (June 8, 1998) at 1 (emphasis added). Nonetheless, the courts in this Circuit have uniformly held that, except in certain circumstances to be discussed further below, an inmate must utilize and exhaust the IGP procedures set forth above in order to satisfy 42 U.S.C. § 1997e(a). An inmate who uses some other "informal" means of pursuing a complaint will be deemed to have satisfied § 1997e(a) only where the informal method results in a disposition favorable to the inmate. See, Marvin v. Goord, 255 F.3d 40, 43 n. 3 (2d Cir. 2001); Hemphill v. New York, 380 F.3d at 682 n. 4.

However, the Second Circuit recently clarified that there are certain exceptions to the foregoing rules. In that regard,

a three-part inquiry is appropriate in cases where a prisoner plaintiff plausibly seeks to counter defendants' contention that the prisoner has failed to exhaust available administrative remedies as required by the PLRA, 42 U.S.C. § 1997e(a). Depending on the inmate's explanation for the alleged failure to exhaust, the court must ask whether administrative remedies were in fact "available" to the prisoner. The court should also inquire as to whether the defendants may have forfeited the affirmative defense of non-exhaustion by failing to raise or preserve it, or whether the defendants' own actions inhibiting the inmate's exhaustion of remedies may estop one or more of the defendants from raising the plaintiff's failure to exhaust as a defense. If the court finds that administrative remedies were available to the plaintiff, and that the defendants are not estopped and have not forfeited their non-exhaustion defense, but that the plaintiff nevertheless did not exhaust available remedies, the court should consider whether "special circumstances" have been plausibly alleged that justify the prisoner's failure to comply with administrative procedural requirements.

Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004).

In the instant case, it is undisputed that plaintiff did not follow the three-step IGP exhaustion procedures described above with regard to the January 14, 2000, incident. First, and contrary to plaintiff's arguments in his papers, his exhaustion of the grievance he filed prior to the January 14^th incident does not help him here.⁶ Moreover, with regard to the grievance that he claims to have filed after the January 14^th incident, he admittedly did not appeal that grievance through to the CORC. Further, while plaintiff pursued other avenues of relief, such as writing to the Superintendent and to the Inspector General, those attempts are not sufficient, because they did not result in a favorable disposition. See, Ortiz v. Skinner, No. 00-CV-07220SR, 2004 WL 2091994 at *7 (W.D.N.Y. Sep. 16, 2004) (collecting cases holding that an unsuccessful attempt to achieve relief through the Inspector General generally does not satisfy 42 U.S.C. § 1997e(a)). In fact, those attempts did not result in any disposition, at least none of which plaintiff was aware.

6 Plaintiff alleges that he exhausted his administrative remedies through the IGP, however, he does so in the mistaken belief that the actions he took prior to the January 14^th incident are sufficient to exhaust his administrative remedies as to this lawsuit, which is based on the events which allegedly occurred on January 14, 2000.

Turning to the three Hemphill factors discussed above, it is clear that the first does not apply, since administrative remedies were available to plaintiff. In that regard, as noted above, plaintiff was able to exhaust his administrative remedies as to the grievance that he filed prior to the January 14, 2000 incident, and he does not claim that those administrative remedies ceased to be available after the January 14^th incident. Rather, plaintiff contends that he filed both a grievance with the IGRC and a complaint with Donnelly following the alleged assault, but never received a response to either. Even if the Court were to accept the unsupported assertion that plaintiff actually filed these complaints, the fact that he did not receive a response did not make the exhaustion remedy unavailable, because he still could have filed an appeal to either the Superintendent or to the CORC. See, Directive 4040 §§ VIII(F); see also 7 N.Y.C.R.R. § 701.8 ("Time limit extensions may be requested at any level of review, but such extensions may be granted only with the written consent of the grievant. Absent such extension, matters not decided within the time limits may be appealed to the next step.") (emphasis added).

As for the second Hemphill factor, although plaintiff alleges that defendants waived the affirmative defense by failing to raise it in their answers, he is incorrect. Defendants expressly raised the defense in their answers. See, [#11], ¶ 7; [#12], ¶ 7. Moreover, plaintiff does not claim that Kitchen or Krawczyk did anything to prevent him from exhausting his remedies.

Turning to the third Hemphill factor, plaintiff offers, as one of his reasons for failing to exhaust administrative remedies, the following:

[The] [i]ncident took place on 1/14/00. . . . [U]ntil the court decided Porter v. Nussle the law in the [S]econd [C]ircuit was that use of force claims, retaliation claims other complaints of "particularized" actions against an individual prisoner did not have to be exhausted.

Pl. memo of law in support of cross-motion for summary judgment, ¶ 5; see also, Pl. Cross-motion [#58]. Construing plaintiff's papers liberally to raise the strongest arguments they suggest, as the Court is required to do, the Court finds that plaintiff is arguing that it was reasonable for him not to exhaust his administrative remedies, because at the time, the law of this Circuit did not require such exhaustion. Plaintiff is correct that, at the time of the incident, and for a long time thereafter, it arguably would have been reasonable for him to believe that he did not need to exhaust his administrative remedies given the nature of his claim. See, Rogriguez v. Westchester County Jail Correctional Dep't, 372 F.3d 485, 487 (2d Cir. 2004) (finding that inmate's belief that he did not need to exhaust "single-episode grievances" was reasonable "because it was thereafter entertained by a panel of this Court [in Nussle v. Willette, 224 F.3d 95 (2d Cir. 2000] (until later rejected by the Supreme Court)." However, plaintiff commenced this action in December 2002, some ten months after the U.S. Supreme Court rejected that notion in Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983 (Feb. 26, 2002). Moreover, in Rodriguez, the Second Circuit held that inmate plaintiffs who formerly believed that they were not required to exhaust were nonetheless required to attempt to exhaust administrative remedies after the Porter v. Nussle decision, though the plaintiff in Rodriguez was excused from doing so because he had been released from prison by that time:

[A]lthough exhaustion would have been required after the Supreme Court's decision in Porter, Rodriguez's transfer from the jurisdiction of the Westchester County officials precluded dismissal of his complaint because the transfer rendered administrative remedies no longer "available," a condition of the exhaustion requirement of section 1997e(a).

Rogriguez v. Westchester County Jail Correctional Dep't, 372 F.3d at 488. The Court understands this language to mean that here, plaintiff was required to exhaust his administrative remedies in the period following the Porter v. Nussle decision, provided that such remedies were available.⁷ However, although plaintiff had approximately ten months between the issuance of the Porter v. Nussle decision and the date he filed this action to pursue such exhaustion, he gives no indication that he attempted to do so. Consequently, the Court finds that the reason offered by plaintiff, namely that he was not required to exhaust at the time of the alleged incident, does not excuse him from exhausting his administrative remedies.

7 Implicit in the quoted language from Rodriguez is that, in the wake of the Porter decision, inmates were deemed to have known that Porter applied retroactively, thus requiring them to seek exhaustion.

Alternatively, plaintiff argues that he believed his complaint involved a non-grievable matter. See, Notice of Cross-motion [#33], ¶ 8 ("[C]omplaints about alleged assaults or verbal harassment matters under investigation by the (I.G.) [Inspector General] are non-grievable."). However, this argument has no merit. First, although plaintiff now maintains that the matter was non-grievable, he fails to then explain why he filed such a grievance. Moreover, as discussed above, Directive 4040, to which plaintiff cites repeatedly in this action, expressly states that harassment, defined by DOCS regulations as "employee misconduct meant to annoy, intimidate or harm an inmate," is a grievable matter. Nor, is there merit to plaintiff's argument that the matter could not be grieved because he had filed a complaint with the Inspector General. In the first place, plaintiff did not file a complaint with the Inspector General until April 2001, almost four months after the alleged assault, and well beyond the usual⁸ 14-day deadline for filing grievances. See, Directive 4040, § V(A)(1). Moreover, at the time plaintiff commenced this action, there were published cases holding that complaints made to the Inspector General were not sufficient to exhaust administrative remedies. See, e.g., Berry v. Kerik, 237 F.Supp.2d 450,452 (S.D.N.Y. Nov. 27, 2002); Houze v. Segarra, 217 F.Supp.2d 394, 396 (S.D.N.Y. Jul. 16, 2002) ( both of which cited Grey v. Sparhawk, No. 99 Civ. 9871 HB, 2000 WL 815916, at * 2 (S.D.N.Y. June 23, 2000)). Plaintiff's argument in this regard is further undercut by the fact that he never followed up on his complaint to the Inspector General after he failed to receive any kind of a decision.

8 Directive 4040, § VI(G), provides that "[t]ime limit extensions may be requested at any level of review."

Lastly, the Court will consider an argument that plaintiff did not expressly make, but which is suggested by a liberal reading of his papers. This argument is that plaintiff exhausted his administrative remedies by raising the claim during his tier disciplinary hearing. In Giano v. Goord, 380 F.3d 670, 678-79 (2d Cir. 2004), the Second Circuit held that an inmate may avoid dismissal if he can establish that he reasonably believed that his "only available remedy" was to raise his complaint as part of a tier disciplinary hearing. Id. at 678-79 (emphasis added). In the instant case, however, plaintiff does not and cannot claim to have believed that his only available remedy was to raise his complaint as part of his disciplinary hearing, since he also filed a grievance with the Inspector General, and also claims to have filed both an inmate grievance and a separate complaint with the facility superintendent. Accordingly, the Court finds that the Giano decision does not apply here.

CONCLUSION

Based upon all of the foregoing, the Court finds that, although plaintiff may have filed various complaints about the alleged assault, he did not exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a) before commencing this action. Furthermore, the Court finds that none of the Hemphill factors apply here to excuse that failure. Therefore, defendants' motion [#29] for summary judgment is granted, plaintiff's cross-motion [#33] for summary judgment is denied, and this action is dismissed with prejudice.

So ordered.