Opinion
98 Civ. 8501 (JGK)
July 25, 2002
OPINION AND ORDER
Antonio Saunders, an inmate at the Green Haven Correctional Facility ("GHFC"), brings this action pursuant to 42 U.S.C. § 1983 against a number of corrections officers and medical personnel at the GREC and their supervisors, alleging that they harassed him on a number of occasions, used excessive force against him, created and/or allowed for prison conditions that failed to protect him from several attacks by other inmates, and failed to provide him with adequate medical treatment after these attacks and for other illnesses. The plaintiff alleges that the supervisory defendants failed to properly train and/or supervise the staff at the GHFC, and failed to intervene to prevent the violations alleged in the Amended Complaint. The defendants move pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing all of the claims in this action.
These illnesses allegedly include one that the plaintiff claims he developed from using an antibiotic that one of the medical provider defendants at the GHFC had prescribed for him for an unrelated illness.
I.
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 the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution."Gallo, 22 F.3d at 1224.
The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate [s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will determine those facts that are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether summary judgment is appropriate, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party, the defendants in this case. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223.
If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). With respect to the issues on which summary judgment is sought, if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).
Finally, although the plaintiff brought this action pro Se, he subsequently obtained counsel, and, through counsel, he has submitted an appropriate response to the defendants' motion in this case, together with supporting affirmations.
II.
The defendants move to dismiss the Amended Complaint without prejudice on the ground that the plaintiff allegedly failed fully to exhaust the administrative remedies available to him on a number of his claims before filing his complaint in federal court. The Prison Litigation Reform Act of 1995 (the "PLRA") amended 42 U.S.C. § 1997e(a) to state 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. § 1997e(a); see also Booth v. Churner, 532 U.S. 731, 736 (2001). "Once within the discretion of the district court, exhaustion in cases covered by 1997e(a) is now mandatory." Porter v. Nussle, 122 5. Ct 983, 988 (2002). Moreover, "[a]ll `available' remedies must now be exhausted; those remedies need not meet federal standards, nor must they be plain, speedy, and effective.'" Id. (quoting Booth, 532 U.S. at 739). A plaintiff must also meet the PLRA's exhaustion requirements at the time a complaint is filed, and cannot cure a failure of exhaustion by pursuing administrative remedies while a federal action is pending. Neal v. Goord, 267 F.3d 116, 121-23 (2d Cir. 2001)
To fully exhaust administrative remedies, the plaintiff must "go beyond the first step," seeking further stages of administrative review until the plaintiff has availed himself of the final stages of the administrative process. Booth, 532 U.S. at 735; see also Kearsey v. Williams, No. 99 Civ. 8646, 2002 WL 1268014, at *2 (S.D.N.Y. June 6, 2002); Waters v. Schneider, No. 01 Civ. 5217, 2002 WL 727025, at *1 (S.D.N.Y. Apr. 23, 2002). Where, as here, an inmate is being held in federal prison under the auspices of the New York Department of Corrections, the inmate must exhaust the formal or informal grievance procedures set forth in 7 N.Y.C.R.R. §§ 701.1-.16. See, e.g. Byas v. New York, No. 99 Civ. 1673, 2002 WL 1586963, at *2 (S.D.N.Y. Jul. 17, 2002).
The PLRA's exhaustion requirement applies to all inmate suits about prison life, as opposed to suits that challenge either the fact or duration of a confinement, whether the suits involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Nussle, 122 S.Ct at 992. In this case, the plaintiff raises a broad range of claims relating to prison conditions at the GHFC, including claims for the use of excessive force, harassment, provision of inadequate medical treatment and failure to intervene or supervise, as against the supervisory defendants. The plaintiff filed his Amended Complaint pro se, but the plaintiff subsequently obtained counsel, who has submitted a letter dated April 20, 2001, which attempts to outline and condense the plaintiff's claims and damages. See Letter from David J. Eskin, Esq. to Lee Alan Adlerstein, Attorney General, State of New York dated April 20, 2001 ("Eskin Letter"), attached as Ex. 1 to Affirmation of Lee Alan Adlerstein dated January 18, 2002 ("Adlerstein Aff."). The defendants have produced the formal records of the plaintiff's grievances and appeals, see Adlerstein Aff. Exs. 3 4, and these records indicate that the plaintiff either did not file grievances relating to a number of his current complaints or did not appeal a number of adverse determinations of grievances. See, e.g. Eskin Letter ¶¶ 8, 9, 13, 14 (no grievance filed); Exs. A, C, D (no appeal taken). The plaintiff cannot pursue such claims in federal court without first having exhausted his administrative remedies.
The plaintiff has submitted an affidavit stating that he "grieved each incident mention[ed] in the complaint and others that are not mention[ed]," but that after receiving no response on some, he began to "write [his] grievances directly to the commissioner, who did respond by saying that [the plaintiff] did not grieve" and that no grievances pertaining to those complaints were on file." See Affidavit of Antonio Saunders dated February 17, 2002, attached as Ex. 1 to Pl.'s Opp. The plaintiff also maintains that officers at the GHFC interfered with his filing of grievances when he was on keeplock status, where he had to file his grievances by placing them in an outbox on the door of his prison cell. However, there is no general futility exception the exhaustion requirement under the PLRA, see Booth, 532. U.S. at 740-41 n. 6, and the plaintiff was still required to exhaust his administrative remedies as set forth in 7 N.Y.C.R.R. §§ 7.01.1-16. See, e.g., Byas, 2002 WL 1586963, at *2; cf. also Benjamin v. Goord, No. 02 Civ. 1703, 2002 WL 1586880, at *2 (S.D.N.Y. Jul. 17, 2002). It is well established that "[p]laintiffs may not bypass this procedure by sending letters directly to the superintendent." Byas, 2002 WL 158694, at *2 (collecting cases). Even if the plaintiff did not receive responses directed toward some grievances, the plaintiff was required, at minimum, to make reasonable attempts to appeal those grievances before bringing an action in federal court, and the plaintiff does not even allege that he attempted to appeal any of the alleged grievances that do not appear on his formal record of grievances. See, e.g., Waters, 2002 WL 727025, at *2; 2002 WL 1332883; Reyes v. Punzal, No. 01-CV-6350L, 2002 WL 1332883, at *2..3 (W.D.N.Y. June 3, 2002) . In any event, the plaintiff's contention that prison officers were obstructing his grievances is significantly undercut by the fact that his official record lists numerous grievances, both while the plaintiff was on keeplock status and when he was not. Counsel for the plaintiff also conceded at oral argument that the petitioner was not in keeplock during the time when all of the alleged incidents about which he complains occurred. In these circumstances, there is no genuine issue of material fact — the plaintiff failed to exhaust his administrative remedies on a broad range of claims raised in this action.
The plaintiff argues that some of his other claims have been exhausted, and the record of the plaintiff's grievances supports this position. However, the plain language of 42 U.S.C. § 1997e(a) says that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title . . . until such administrative remedies as are available are exhausted." (Emphasis added.) It is plain that this action includes a number of unexhausted claims. Moreover, the defendants seek only to dismiss the Amended Complaint without prejudice to refiling if and when the plaintiff seeks to file a complaint that is limited to viable claims that have been fully exhausted. It is also unclear from the record whether the plaintiff can, or will seek to, exhaust any of the other claims that he has sought to raise in this action. See generally Benjamin, 2002 WL 1586880, at *2 n. 5. In these circumstances, it is appropriate to dismiss this action without prejudice to repleading any viable claims that have been fully exhausted. See, e.g., Neal, 267 F.3d at 121-23; Benjamin, 2002 WL 1586880, at *2 n. 5; Santiago v. Meinsen, 89 F. Supp.2d 435, 441 (S.D.N.Y. 2000); see also Graves v. Norris, 218 F.3d 884, 885-86 (8th Cir. 2000) (per curiam) ("When multiple prison condition claims have been joined, as in this case, the plain language of § 1997e(a) requires that all available prison grievance remedies must be exhausted as to all of the claims.")
III.
The defendants raise a number of other arguments for dismissal of the claims in this case, which are moot in light the dismissal of this action. The Court has considered all of the parties other arguments and finds them to be either moot or without merit. The defendant's motion is therefore granted. The plaintiff's Amended Complaint is dismissed without prejudice, and the Clerk of the Court is directed to enter judgment accordingly.