The opinion of the court was delivered by: Sprizzo, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff pro se brings this action against Charles Buday, W.
Glasser, J. Peryea, and C. Grima, pursuant to 42 U.S.C. § 1983
alleging that defendants violated his Eight Amendment rights.
Defendants move to dismiss this action pursuant to Rule 12(b) of
the Federal Rules of Civil Procedure on the ground that plaintiff
has failed to exhaust his administrative remedies as required by
the Prison Litigation Reform Act of 1996 ("PLRA"). For the
reasons stated below, defendants' motion to dismiss is granted.
The following facts, taken from plaintiff's complaint, are, of
course, assumed to be true. On October 4, 1997, plaintiff, an
inmate at Green Haven Correctional Facility ("Green Haven"),
alleges that defendants pushed him without provocation, and that
defendants subsequently beat him, inflicting serious physical
injuries, including lacerations to his face and body.
While plaintiff acknowledges that there is a grievance
procedure in place at Green Haven, plaintiff readily admits that
he did not present the facts of this case to the grievance
committee because "[a]ll inmate complaints of assault by staff
are routinely denied, and they are found to be without merit by
the N.Y.S. Department of Correctional Services." Complaint at ¶
Defendants move to dismiss plaintiff's complaint for failure to
exhaust administrative remedies as required by the PLRA. The PLRA
amended 42 U.S.C. § 1997e(a) and 18 U.S.C. § 3626 to require that
"no action shall be brought with respect to prison conditions
under section 1983 or any other federal law . . . until such
administrative remedies as are available are exhausted."
42 U.S.C. § 1997e(a) (West Supp. 1998). Here, plaintiff seeks
monetary damages resulting from defendants' use of excessive
force and it is beyond dispute that plaintiff has failed to
exhaust his administrative remedies.*fn1 Thus, the Court must
first determine whether the PLRA's administrative exhaustion
requirement bars plaintiff from proceeding in this forum.
Some courts that have addressed the applicability of the PLRA's
administrative exhaustion requirement in actions for excessive
force have questioned whether such claims are actions "with
respect to prison conditions," within the meaning of § 1997e(a).
Compare Baskerville v. Goord, No. 97 Civ. 6413, 1998 WL 778396,
at *3-*5 (S.D.N.Y. Nov. 5, 1998); Wright v. Dee, 54 F. Supp.2d 199,
204 (S.D.N.Y. 1999); Carter v. Kiernan, 98 Civ. 2664, 1999
WL 14014, at *2 (January 14, 1999); White v. Fauver,
19 F. Supp.2d 305, 312-15 (D.N.J. 1998); Rodriguez v. Berbary,
992 F. Supp. 592, 593 (W.D.N.Y. 1998); Johnson v. O'Malley, No. 96
C. 6598, 1998 WL 292421, at *3 (N.D.Ill. May 19, 1998); with
Freeman v. Francis, 196 F.3d 641, 643-44 (6th Cir. 1999)
(holding that excessive force claims are subject to the PLRA's
administrative exhaustion requirement); Diezcabeza v. Lynch,
75 F. Supp.2d 250, 255 (S.D.N.Y. 1999) (same); Beeson v. Fishkill
Correctional Facility, 28 F. Supp.2d 884, 888 (S.D.N.Y. 1998)
(same); Johnson v. Garraghty, 57 F. Supp.2d 321, 322-323
(E.D.Va. 1999) (same); Moore v. Smith, 18 F. Supp.2d 1360,
1362-63 (N.D.Ga. 1998) (same); Morgan v. Arizona Dep't of
Corrections, 976 F. Supp. 892, 896 (D.Ariz. 1997) (same).
The phrase "with respect to prison conditions" is not defined
anywhere in 42 U.S.C. § 1997e(a). The phrase, however, is defined
in 18 U.S.C. § 3626 which was adopted as part of the PLRA.
Section 3626(g)(2) states, in part, that
the term "civil action with respect to prison
conditions" means any civil proceedings arising under
Federal law with respect to the conditions of
confinement or the effects of actions by government
officials on the lives of persons confined in prison,
but does not include habeas corpus proceedings
challenging the fact or duration of confinement in
18 U.S.C. § 3626(g)(2) (West Supp. 1998).
In analyzing the phrase "with respect to prison conditions" in
§ 1997e(a), the Court should rely upon the same language defining
the phrase in § 3626(g)(2), since the same or similar language
used in different parts of a statute should be interpreted as
having the same or similar meaning. See Mertens v. Hewitt
Associates, 508 U.S. 248, 260, 113 S.Ct. 2063, 124 L.Ed.2d 161
(1993) ("[L]anguage used in one portion of a statute  should be
deemed to have the same meaning as the same language used
elsewhere in the statute."). Thus, this Court joins with those
courts that have found the phrase "with respect to prison
conditions" to encompass the definition found in § 3626(g)(2).
See Diezcabeza, 75 F. Supp.2d at 253; Beeson, 28 F. Supp.2d at
888-89. Accordingly, the Court is constrained to conclude that
plaintiff's excessive force claims fall within the plain language
of § 3626(g)(2) that defines "action with respect to prison
conditions" to include any civil proceeding with respect to "the
effects of actions by government officials on the lives of
persons in prison." 18 U.S.C. § 3626(g)(2). Thus, plaintiff's
admission that he did not exhaust the administrative remedies
available to him at the prison mandates dismissal of the instant
As noted above, several courts have held that an "action . . .
with respect to prison conditions" does not include those suits
alleging excessive force by corrections officials. To the extent
those cases rely upon the fact that an amendment of § 1997e(a) in
1996 limited the scope of the prior version of the statute to
claims brought "with respect to prison conditions," the Court
does not find them persuasive. Rather than narrowing the scope of
the prior version of the statute, the 1996 amendment actually
broadened the scope of the administrative exhaustion requirement
to include all civil claims under federal law, not just those
brought pursuant to § 1983 (as did the prior version of §
1997e(a)). Moreover, nowhere in the 1996 amendment is there even
a suggestion that the phrase "prison conditions" should be
defined differently from the definition provided for by Congress
in 18 U.S.C. § 3626, which was enacted as part of the PLRA. It
follows that excessive force claims are subject to the statutory
exhaustion requirement as acts of government officials having an
effect on the lives of those in prison.*fn2
The Court is likewise not persuaded by the argument relied upon
by some courts that two U.S. Supreme Court decisions, Farmer v.
Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)
and Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 117 L.Ed.2d
156 (1992), support the position that excessive force claims are
different from typical conditions-of-confinement claims, and
hence not subject to
exhaustion.*fn3 See Baskerville, 1998 WL 778396, at *3-*4;
White, 19 F. Supp.2d at 314-15; Rodriguez, 992 F. Supp. at 593;
Johnson, 1998 WL 292421, at *3. As Judge Mukasey noted in
Beeson, the Court's responsibility in interpreting § 1997e(a)
is to determine the intent of Congress, not the Supreme Court,
see Beeson, 28 F. Supp.2d at 890, and there is no indication
that Congress intended to adopt the distinction regarding
conditions-of-confinement claims and excessive ...