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concluding that where plaintiff is "not transferred until after grievance could have been filed and processed, then his claim must be dismissed for failure to exhaust administrative remedies."
Summary of this case from Jones v. New York City Department of CorrectionsOpinion
99-CV-0624
September 25, 2000
John Muller, Dannemora NY, Pro Se.
Douglas Goglia, AAG, New York State Attorney General, Albany NY, for Defendant.
MEMORANDUM — DECISION ORDER
Plaintiff Muller commenced the instant action pursuant to 42 U.S.C. § 1983 against Defendant Stinson claiming that his Eighth Amendment rights were violated because Stinson refused Plaintiff's request to be placed in protective custody and, as a result, Plaintiff was attacked and received serious injuries.
Presently before the Court is Defendant's motion to dismiss pursuant to FED. R. CIV. P. 12 on the ground that: (1) Plaintiff's Complaint fails to state a claim; and (2) Plaintiff failed to exhaust his administrative remedies.
I. DISCUSSION
A. Failure to State a Claim
In the Complaint, Plaintiff alleges that he received threats from enemies in the prison, that on May 10, 1998 he requested that Defendant place him in protective custody, that Defendant instructed that Plaintiff be returned to "the open population" and that, as a result, Plaintiff was attacked receiving slash wounds to the back of his head and neck requiring seventeen stitches. See Compl.
"An inmate who is injured as a result of a prison official's deliberate indifference to his safety may maintain a damage action for the deprivation of his civil rights under the Eighth and Fourteenth Amendments." Stubbs v. Dudley, 849 F.2d 83, 85 (2d Cir. 1988), cert. denied, 109 S.Ct. 1095 (1989). "Though the law is now settled that mere negligence will not give rise to a constitutional violation, it is equally clear that a showing of express intent to inflict unnecessary pain is not required." Id. (internal citations and quotation omitted).
Although the Complaint is somewhat "barebones," considering Plaintiff's pro se status, the Court finds that the Complaint adequately states a claim upon which relief can be granted. If, as the Complaint seemingly alleges, Defendant deliberately disregarded Plaintiff's request for protection in light of a substantial risk of serious injury, then there has been an Eighth Amendment violation. See Farmer v. Brennan, 114 S.Ct. 1970, 1983; see also Snider v. Dylag, 188 F.3d 51 (2d Cir. 1999);Hendricks v. Coughlin, 942 F.2d 109 (2d Cir. 1991) Stubbs v. Dudley, 849 F.2d 83, 86 (2d Cir. 1988); Hutchison v. Pangburn, 1998 WL 150959, at *5 (S.D.N.Y. 1998). Accordingly, Defendant's motion to dismiss on this ground is denied.
B. Exhaustion
The Prison Litigation Reform Act 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 such administrative remedies as are available are exhausted." 42 U.S.C. § 1197e(a); see Nussle v. Willette, — ___ F.3d ___, 2000 WL 1199957, at *2 (2d Cir. 2000). The Second Circuit has yet to rule whether exhaustion is required in those situations where the prisoner seeks only monetary relief and the administrative grievance procedures make no provision for the award of monetary damages. See Nussle, 2000 WL 1199957, at *4 n. 5; see also Snider, 188 F.3d at 55 (noting that "it is far from certain that the exhaustion requirement of 42 U.S.C. § 1997e(a) applies to deliberate indifference claims in the context of the instant one, under § 1983, where the relief requested is monetary and where the administrative appeal, even if decided for the complainant, could not result in a monetary award."). For the reasons articulated by the Seventh Circuit inPerez v. Wisconsin Dep't of Corrections, 182 F.3d 532, 537 (7th Cir. 1999), the Third Circuit in Nyhuis v. Reno, 204 F.3d 65 (3d Cir. 2000), the Sixth Circuit in Wyatt v. Leonard, 193 F.3d 876 (6th Cir. 1999), and the Eleventh Circuit in Alexander v. Hawk, 159 F.3d 1321 (11th Cir. 1998), which need not be restated here, the Court finds that, even though Plaintiff seeks only monetary damages, the Complaint must be dismissed without prejudice because Plaintiff failed to exhaust his administrative remedies. It would subvert the plain Congressional language of the PLRA to allow a prisoner to avoid the exhaustion requirement simply by seeking only monetary damages. See Newman v. Holder, 101 F. Supp.2d 103, 106 (E.D.N.Y. 2000); Beatty v. Goord, 2000 WL 288358, at *2 (S.D.N.Y. 2000) (citing cases).
Here, Plaintiff admits in his Complaint that he did not present his facts to the grievance program. Thus, he has failed to exhaust his administrative remedies. However, Plaintiff asserts that he was transferred out of Great Meadow Correctional Facility before he had an opportunity to file a grievance. Generally speaking, grievances must be filed within fourteen days of the alleged occurrence. See 7 N.Y.C.R.R. § 701.7(a)(1). Where an inmate an inmate files a grievance, but is then transferred and his grievance is institutional in nature, see 7 N.Y.C.R.R. § 701.2(c) (that is where the grievant is only affected as long as he remains a resident of the facility in which the grievance was filed), 7 N.Y.C.R.R. § 701.7(a)(5) provides that the grievance will be dismissed. In such a circumstance, practically speaking, there is no available grievance mechanism because the grievance will be dismissed as a matter of course.
Here, it is unclear when Plaintiff was transferred and, thus, whether he had an available grievance mechanism. If, in fact, Plaintiff was not transferred until after a grievance could have been filed and processed, then his claim must be dismissed for failure to exhaust administrative remedies. On the other hand, if he did not have an opportunity to avail himself of the grievance procedure because of his transfer, then he is not required to exhaust his administrative remedies. Thus, the Court denies Defendant's motion to dismiss on this ground without prejudice.
II. CONCLUSION
For the foregoing reasons, Defendant's motion to dismiss is DENIED. Defendant may again move to dismiss on the ground of failure to exhaust administrative remedies upon proof that Plaintiff had an opportunity to avail himself of the grievance procedure.