Opinion
Civil 3:97CV687(TPS).
February 9, 2005
RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
The plaintiff, an inmate confined at Garner Correctional Institution in Newtown, Connecticut, filed this civil rights action pro se pursuant to 28 U.S.C. § 1915 and 42 U.S.C. § 1983 against named defendants M. Zacharewicz, J. Perry, R. Pepe, M. Windish, DeGray, J. Sicilia, K. Masey, J. Walden, L. Krajniak, P. Bradnan, Torres, G. Gomez, DeVeau, J. Armstrong, J. Tokarz, P. Matos, and several John Doe correctional officers, alleging, principally, failure to protect him from assault by other inmates during his incarceration at Northern Correctional Institution in Somers, Connecticut in 1996. On August 18, 2000, the court dismissed all claims against the John Doe defendants for the plaintiff's failure to identify these correctional officers. (Dkt. # 56). On March 22, 2001, the court dismissed all claims against the defendants in their official capacities, but denied the defendants' Motion for Judgment on the Pleadings based, in part, on the Second Circuit decision in Nussle v. Willette, 224 F.3d 95 (2d Cir. 2000). (Dkt. # 63). That decision was reversed by the United States Supreme Court in Porter v. Nussle, 534 U.S. 516 (2002). Pending before the court is the defendants' Motion for Summary Judgment. (Dkt. # 81). The defendants argue that, because the plaintiff failed to exhaust his administrative remedies under the grievance procedures of the Connecticut Department of Correction, his case must be dismissed. The court agrees, and the defendants' motion is GRANTED.
I. STATEMENT OF FACTS
For the purposes of this ruling the court accepts as true the following facts taken from the plaintiff's Second Amended Complaint (Dkt. # 29).On August 20, 1996 and September 26, 1996, the plaintiff submitted requests for placement in protective custody to defendant Counselor Supervisor Sicilia based on rumors that he was a "snitch" and problems he had experienced in the past when confined in general population. Defendant Sicilia did not respond to this request.
On November 14, 1996, the plaintiff was directed to prepare to go to recreation. Defendant Pepe approached his cell to handcuff and shackle the plaintiff, as all inmates went to recreation with their hands cuffed behind their backs and wearing leg irons. Upon asking defendant Pepe if he would be safe at recreation, the plaintiff was assured that nothing would happen to him and was escorted to an exercise yard with inmates Rivera, Smith, and Sundwall.
While talking to inmate Rivera, inmate Smith slipped his handcuffs to the front and rushed the plaintiff, who put his head down to avoid a direct blow and looked toward the interview room. He saw defendant Windish leaving the room. While the recreation yard was unsupervised, inmate Smith pulled the plaintiff's head down and began striking the plaintiff in the face with his knee. Inmate Smith then threw the plaintiff on the ground and began hitting the plaintiff's head and upper body with his handcuffs. Inmate Sundwall approached and began "kicking and stomping" the plaintiff's head and face. The plaintiff's hands remained cuffed behind his back throughout.
The plaintiff suffered a broken nose, lacerations to his head, right knee and ankles, and numerous bruises and abrasions. Defendants Pepe, Perry, and Windish remained outside the recreation yard and did not intervene to protect the plaintiff. After the assault, the plaintiff was taken to the infirmary and then to Johnson Memorial Hospital emergency room for treatment. On November 15, 1996, the plaintiff asked defendant Zacharewicz to call the state police so he could press charges against the inmates who assaulted him. Defendant Zacharewicz told the plaintiff that he had refused to press charges while he was on a stretcher following the assault.
Since this incident, the plaintiff has not filed grievances against any of the defendants for their failure to protect him from inmates Smith and Sundwall. (Defs.' Mem. Supp. Summ. J., DiGennaro Aff. ¶ 3).
II. DISCUSSION
Rule 56 of the Federal Rules of Civil Procedure provides in pertinent part:
[w]hen a motion for summary judgment is made . . . an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
Fed.R.Civ.P. 56(e). The plaintiff has not filed any papers with the court setting forth a genuine issue of material fact in response to the defendants' motion. This is hardly surprising given the plaintiff's refusal to even meet with pro bono counsel, let alone respond to any of Attorney Conway's requests for information necessary to draft proper responses to the defense. (Dkt. # 75). The plaintiff's intransigence ultimately led to Attorney Conway's request to withdraw as pro bono counsel in this matter, which was granted by the court. (Dkt. # 76). Nevertheless, the court will proceed to the merits of the defendants' motion.
The Prison Litigation Reform Act of 1996 (" PLRA") provides that "[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 . . . administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a) (emphasis added). In a decision that reversed the Second Circuit, the Supreme Court recently held that the term "prison conditions" is to be interpreted broadly, applying 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." Porter, 534 U.S. at 532. Moreover, the exhaustion of administrative remedies is mandatory, even when money damages are sought. Booth v. Churner, 532 U.S. 731, 739, 741 (2001).
The Connecticut Department of Correction Administrative Directive ("A.D.") 9.6 provides an administrative procedure under which state prisoners may seek redress for their grievances. The procedure employs three levels of review. The plaintiff does not allege that he attempted to resolve his present claims through this grievance procedure. He did not initiate, much less exhaust, his administrative remedies. (Defs.' Mem. Supp. Summ. J., DiGennaro Aff. ¶¶ 3-5). Accordingly, his claim must be dismissed.See White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997);Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir. 1998), cert. denied, 525 U.S. 833 (1998) (under the PLRA, plaintiff inmate should attach to his § 1983 complaint the administrative decision exhibiting exhaustion); Dodson v. Ohio Dep't of Rehab. and Corr., 1999 U.S. Dist. LEXIS 4550, at *13 (March 17, 1999); Gibbs v. Bureau of Prison Office et. al., 986 F.Supp. 941, 943 (D. Md. 1997) (requiring exhaustion of administrative remedies before a prisoner can bring a medical claim); Beeson v. Fishkill Corr. Facility, 28 F.Supp.2d 884, 896 (S.D.N.Y. 1998) (holding that in order to bring a claim of excessive force or assault by prison guards, plaintiff inmate must exhaust administrative remedies at correctional facility regardless of what relief is sought).
For the foregoing reasons, the defendants' motion for summary judgment is GRANTED.
IT IS SO ORDERED.