V. MOVANTS HAVE FAILED TO EXHAUST ADMINISTRATIVE REMEDIES. 42 U.S.C. § 1997 provides that: “No 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).

¶ 11. In 2012, the USAO commenced an investigation into the treatment of young male inmates, between the ages of 16 and 18 (“Young Inmates”), pursuant to the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997, and the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141. As part of its comprehensive investigation, the USAO and its expert consultant reviewed hundreds of thousands of pages of Department records, analyzed a sample of approximately 200 use of force incidents involving Young Inmates, conducted tours of the facilities that housed Young Inmates, and interviewed staff, inmates, and other witnesses.

In support of its Motion, the United States submits that: 1. Pursuant to the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997, et seq., on August 4, 2014, the United States sent a 79-page letter to the City of New York (the “City”), its chief legal officer, and the Department of Correction formally notifying them of the Government’s findings that young male inmates – ages 16, 17, and 18 – incarcerated on Rikers Island (the “Subject Inmates”) were being subject to unconstitutional conditions of confinement. In particular, the findings letter asserted that the City has engaged in a pattern or practice of: (a) subjecting the Subject Inmates to excessive and unnecessary use of force; (b) failing to adequately protect the Subject Inmates from violence inflicted by other inmates; and (c) placing the Subject Inmates in punitive segregation at an alarming rate and for excessive periods of time.

Plaintiffs and the City of New York both consent to the United States’ intervention. PRELIMINARY STATEMENT Following a two-and-a-half year investigation by the U.S. Attorney’s Office for the Southern District of New York (the “United States”), which found a pervasive and deep-seated culture of violence at the New York City Department of Correction (“DOC”) jails on Rikers Island (“Rikers”), the United States is moving to intervene in this action pursuant to the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997. CRIPA allows the United States to intervene in any action seeking relief from conditions of confinement that deprive prisoners “of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States causing them to suffer grievous harm,” where the Attorney General has “reasonable cause to believe” that such deprivation is pursuant to a pattern or practice of resistance to the full enjoyment of such rights.

The PLRA states 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. § 1997(e) (a) (2012). The exhaustion requirement relates to an “action” brought, and not to writs or orders sought by prisoners to protect their ability to litigate an ongoing action from abusive conduct by Defendants.

Plaintiff does not argue that she was “resid ing in” an institution. Rather, she relies upon the language of 42 U.S.C. § 1997 of the Prison Litigation Reform Act (hereinaft er “PLRA”) which includes “pretrial detention facility” as par t of the definition for “institution”. Recognizing the absence of any authority for the pr oposition that a courthouse lockup is an “institution”, Plain tiff argues that “confinement alone is enough to merit protection un der RLUIPA.”

Defendant’s conclusory statement is totally unsupported by any evidence offered by Defendant. Presuming, Defendant had offered evidence in support of his conclusions, 42 U.S.C. §1997 e(e) does not apply for the following reasons: 1. The issue raised by Plaintiff is not a claim for mental or emotional injury suffered during any attendant custodial detention for which the PLRA would apply.

II. LEGAL ARGUMENT A. Plaintiff Failed to Exhaust the Administrative Remedies Available to Him as Required by 42 U.S.C. § 1997(e): The PLRA requires inmates to properly exhaust all administrative remedies before bringing a lawsuit. Under 42 U.S.C. § 1997e(a): No action shall be brought with respect to prison conditions under § 1979 of the Revised Statutes of the United States (42 U.S.C. § 1983), 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.

Indeed, the Tenth Circuit has recognized there are exceptions to the exhaustion requirement, stating: We have previously noted that the PLRA only requires the exhaustion of “available” administrative remedies. Jernigan, 304 F.3d at 1032; 42 U.S.C. § 1997 e(a) (requiring exhaustion of “such remedies as are available”). In fact, we have stated that district courts are “obliged to ensure that any defects in exhaustion were not precured from the action or inaction of prison officials” before dismissing a claim for failure to exhaust.

17[a], §115.217[a]) i. Engaged in sexual abuse in a prison, jail, lockup, community confinement facility, juvenile facility, or other institution (as defined in 42 U.S.C. 1997); ii. Convicted of engaging or attempting to engage in sexual activity in the community facilitated by force, overt or implied threats of force, or coercion, or if the victim did not consent or was unable to consent or refuse; or iii.