Opinion
No. 03-CV-0782E(F).
November 18, 2004
MEMORANDUM AND ORDER
This decision may be cited in whole or in any part.
Plaintiff, proceeding pro se and currently incarcerated by the New York Department of Correctional Services ("DOCS"), commenced this action pursuant to 42 U.S.C. § 1983 ("section 1983") on October 20, 2003 against defendant Peter Comstock, a nurse at the Gowanda Correctional Facility who plaintiff claims failed to provide medical treatment to him when he suffered a stroke on September 8, 2001. On February 6, 2004 this Court granted plaintiff permission to proceed in forma pauperis and on March 24, 2004 ordered the Clerk of the Court to cause the U.S. Marshal to serve the Summons and Complaint upon defendant. Defendant pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("FRCvP") moves to dismiss plaintiff's Complaint claiming that plaintiff has failed to exhaust his administrative remedies in violation of 42 U.S.C. § 1997e(a) and, therefore, this Court must dismiss plaintiff's section 1983 claim. For the reasons set forth below, defendant's motion will be granted and plaintiff's claims will be dismissed.
FRCvP 12(b)(6) entitles a defendant to a judgment of dismissal where a complaint fails to state a claim upon which relief can be granted. The standard of review on a motion to dismiss is heavily weighted in favor of a plaintiff. The Court is required to read a complaint generously, accepting the material facts alleged therein as true and drawing all reasonable inferences from the complainant's allegations. California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 515 (1972); Frasier v. Gen. Elec. Co., 930 F.2d 1004, 1007 (2d Cir. 1991). A defendant is entitled to dismissal pursuant to FRCvP 12(b)(6) only when the court finds that "it appears beyond doubt that a plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Where a plaintiff appears pro se, the Court must "read the pleadings * * * liberally and interpret them to raise the strongest arguments that they suggest." McPhereson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999). Review is limited, and the "issue is not whether the plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995) (citations omitted).
To sufficiently allege a section 1983 claim, plaintiff must first have exhausted his administrative remedies. The Prisoner Litigation Reform Act (" PLRA") provides that "no action shall be brought with respect to prison conditions under section 1983 * * * by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The Supreme Court has held that this exhaustion requirement applies to "all inmate suits about prison life". Porter v. Nussle, 534 U.S. 516, 532 (2002). In order to exhaust his remedies, a prisoner must pursue his grievance to the highest administrative level, including all appellate remedies. Id. at 524.
New York's Inmate Grievance Program ("IGP") is a three-step inmate grievance process that prisoners must exhaust before filing a complaint in federal court. Petit v. Bender, 2003 U.S. Dist. LEXIS 20925, at *13 (S.D.N.Y. Nov. 19, 2003); see also 7 N.Y.C.R.R. § 701.7. First, the inmate must file a complaint with the Inmate Grievance Resolution Committee ("IGRC") within fourteen days of the alleged incident. Exceptions to this time limit may be approved by the IGP supervisor based on mitigating circumstances. Second, the inmate, if dissatisfied with the IGRC's response to the grievance, can appeal to the superintendent within four working days after receipt of such response. Third, the inmate, within four working days after receipt of the superintendent's written response, may appeal to the Central Office Review Committee ("CORC"). 7 N.Y.C.R.R. § 701.7(a), (b) and (c). Only upon exhaustion of these three levels of review may a prisoner file a section 1983 complaint. Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001). In the Second Circuit, formal compliance with the IGP is required and an inmate must exhaust his administrative remedies even if such exhaustion would be futile or ineffective. Beharry v. Ashcroft, 329 F.3d 51, 57-58 (2d Cir. 2003).
Defendants claim plaintiff failed to exhaust his administrative remedies because he filed his grievance nearly two years after the alleged incident. It is undisputed that plaintiff did not timely file his grievance with the DOCS concerning the allegations in his Complaint. Plaintiff claims he was physically incapable of filing a grievance during the fourteen-day period immediately following his stroke. When he did file his grievance on July 2, 2003, his grievance was denied as untimely and the IGRC found no mitigating circumstances. On September 10, 2003 plaintiff appealed to the superintendent who denied his request to file an appeal.
Courts in this jurisdiction have regularly held that failure to timely file an appeal during the administrative grievance process, followed up by a subsequent denial of access by CORC due to untimeliness, will not constitute exhaustion of administrative remedies. See Petit, at *14-*15; Long v. Lafko, 254 F. Supp. 2d 444, 448 (S.D.N.Y. 2003); Patterson v. Goord, 2002 U.S. Dist. LEXIS 22482, at *1 (S.D.N.Y. Nov. 21, 2002). Plaintiff claims that mitigating circumstances prevented him from exhausting his administrative remedies — viz., he was physically incapable of filing a grievance from September 8, 2001 to October 2, 2001 due to his stroke. Plaintiff does not allege in his Complaint, however, that such incapacity continued until July 2, 2003 — twenty months later — when he filed his untimely grievance.
If this Court were to accept such untimely filing without the existence of mitigating circumstances from the time of the alleged incident through the date of the filing of the grievance, any inmate who failed to timely grieve or appeal a required administrative procedure could at any subsequent point in time simply petition the IGP supervisor in order to fulfill the exhaustion requirement. Such a construction is antithetical to the PLRA's goal of "reducing the perceived burdensome flow of prisoner litigation." McCoy v. Goord, 255 F. Supp. 2d 233, 240 (S.D.N.Y. 2003); Porter, at 524-525 ("Beyond doubt, Congress enacted [42 U.S.C.] § 1997e(a) to reduce the quantity and improve the quality of prisoner suits * * *. In some instances, corrective action taken in response to an inmate's grievance might improve prison administration and satisfy the inmate, thereby obviating the need for litigation. * * * In other instances, the internal review might filter out some frivolous claims.") (citations and quotations omitted). As plaintiff did not exhaust his administrative remedies by untimely filing his grievance, defendant's Motion to Dismiss will be granted.
Accordingly, it is hereby ORDERED that defendant's Motion to Dismiss is granted and that plaintiff's Complaint is dismissed.