Therefore, the court dismisses this case, without prejudice, so
that plaintiff may comply with the exhaustion requirement.
I. Plaintiff Failed to Exhaust His Administrative Remedies
On April 8, 1998, defendants moved for summary judgment.
Defendants claim, inter alia, that summary judgment should be
granted because Harris failed to exhaust his administrative
remedies before bringing suit in federal court. Defendants
include, as support for their contention, a sworn affidavit from
Jim Lagoi, who is an employee with the New York State Department
of Correctional Services ("DOCS"). (Lagoi Aff., pp. 1-2). Mr.
Lagoi works for DOCS as the Inmate Grievance Coordinator at Green
Haven Correctional Facility. Mr. Lagoi stated that after a review
of the records maintained at the prison, "it is apparent that at
no time did [Harris] file a grievance relating to a purported
assault by Corrections Officers Surber and Gunderman. Further, he
filed no grievances relating to their breaking his glasses, or
using racial epithets against him, or the denial of adequate
medical treatment." (Lagoi Aff., p. 2).
The Prison Litigation Reform Act of 1996 ("PLRA"),
42 U.S.C. § 1997e(a), provides:
"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."
The plaintiff admits that he did not file any prior complaint
regarding the October 25, 1996 incident with the prison grievance
program or in state court. (Compl., p. 3). Given the recent
amendment to the PLRA, which now makes the exhaustion requirement
mandatory rather than directory, the court must dismiss this
claim, without prejudice, to allow plaintiff the opportunity to
first file this complaint pursuant to the appropriate prison
grievance procedures. See 42 U.S.C. § 1997e(a); see e.g., Melo
v. Combes, et al., 1998 WL 67667 (S.D.N.Y. Feb.18, 1998)
(Koeltl, J.) (dismissing prisoner's § 1983 claim for failure to
exhaust administrative remedies); Salahuddin v. Mead, 1997 WL
357980, *4 (S.D.N.Y. June 26, 1997) (Mukasey, J.) (applying PLRA
retroactively and dismissing § 1983 claim for failure to exhaust
administrative remedies, even though the underlying
constitutional violation occurred prior to the effective date of
the PLRA); Decker v. Watch Commander John Doe, 1998 WL 883300,
*2 (S.D.N.Y. Dec. 17, 1998) (Mukasey, J.) (dismissing prisoner's
§ 1983 claim for failure to exhaust available remedies, despite
the fact that such remedies did not provide monetary relief as
sought by plaintiff).