The opinion of the court was delivered by: McAVOY, District Judge.
MEMORANDUM-DECISION & ORDER
This pro se action brought pursuant to 42 U.S.C. § 1983 was
referred by this Court to the Hon. Gustave J. Di Bianco, United
States Magistrate Judge, for a Report-Recommendation pursuant to
28 U.S.C. § 636(b) and Local Rule 72.3(c).
No objections to the Report-Recommendation dated March 17,
2000 have been filed. In the absence of objections, the Court
may reverse a magistrate judge's decision only if it is "clearly
erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A). When
deciding whether to "accept, reject, or modify" a magistrate
judge's findings, a district judge may "recommit the matter to
the magistrate with instructions." 28 U.S.C. § 636(b)(1)(C);
see also Mathews v. Weber, 423 U.S. 261, 271-72, 96 S.Ct. 549,
46 L.Ed.2d 483 (1976). The determination that remand is
warranted does not constitute a de novo review. Instead, the
Court merely identifies issues in the Report-Recommendation that
require clarification to ensure that no error is contained
For the following reasons, the Court recommits this matter to
the Magistrate Judge for reconsideration of the exhaustion
requirement of the Prison Litigation Reform Act of 1995
("PLRA"), 42 U.S.C. § 1997e(a), in light of the specific relief
sought in this case.
The Court agrees with the Magistrate Judge's determination
that medical care falls within the "prison conditions"
contemplated by the PLRA, making this case subject to the PLRA's
exhaustion requirement. However, the Court questions whether,
under the facts and circumstances of this case, administrative
remedies are "unavailable" to Plaintiff for the purposes of
excusing the exhaustion requirement.
The definition of the PLRA's availability requirement is
widely debated by courts throughout the country and within this
Circuit. See Nyhuis v. Reno, 204 F.3d 65, 69-70 (3rd Cir.
2000) (collecting cases); Beeson v. Fishkill Correctional
Facility, 28 F. Supp.2d 884, 888 (collecting cases, including
conflicting district court cases from within the Second
Circuit). Some courts hold that when administrative procedures
do not provide for the relief sought by the plaintiff,
exhaustion would be "futile" and, therefore, may be waived.
See, e.g., Whitley v. Hunt, 158 F.3d 882 (5th Cir. 1998);
Lunsford v. Jumao-As, 155 F.3d 1178 (9th Cir. 1998); Garrett
v. Hawk, 127 F.3d 1263 (10th Cir. 1997); Polite v. Barbarin,
No. 96 CIV. 6818(DLC), 1998 WL 146687, 1998 U.S. Dist. LEXIS
3600 (S.D.N.Y. Mar. 25, 1998). Other courts hold that the PLRA
makes exhaustion mandatory in all cases. See, e.g., Nyhuis,
204 F.3d at 69; Wyatt v. Leonard, 193 F.3d 876 (6th Cir.
1999); Alexander v. Hawk, 159 F.3d 1321 (11th Cir. 1998);
Beeson, 28 F. Supp.2d 884; Warburton v. Underwood,
2 F. Supp.2d 306 (W.D.N.Y. 1998). In the absence of a Second
Circuit ruling on the matter, no controlling precedent exists as
to the meaning of this requirement. See, e.g., Johnson v.
Goord, No. 99-0375, 2000 U.S.App. LEXIS 12031, *2 (2nd Cir. May
30, 2000) ("This Court has not yet resolved the question whether
§ 1997e(a) applies when the relief requested is unavailable
through administrative remedies."); Liner v. Goord,
196 F.3d 132, 135 (2d Cir. 1999) (declining to resolve split among
districts about how to apply the exhaustion requirement).
However, various persuasive authorities suggest that, under the
facts presented herein, adequate administrative remedies may be
"available" to the Plaintiff within the meaning of the PLRA.
The Court finds the reasoning in Nyhuis v. Reno, 204 F.3d 65
(3d Cir. 2000), particularly helpful in this respect. The
Nyhuis court distinguished between cases in which purely
monetary relief is sought and "mixed claims" cases, in which the
plaintiff seeks both relief that may be granted through
administrative procedures (injunctive relief) and relief that is
unavailable administratively (monetary and declaratory relief).
Nyhuis, 204 F.3d 65, 70. "No court of appeals interpreting the
PLRA has recognized a futility exception to § 1997e(a)'s
exhaustion requirement in a mixed claim case." Nyhuis, 204
F.3d at 70. See also Whitley, 158 F.3d at 887 (predicating
waiver of exhaustion on the fact that plaintiff narrowed
pleading to request only monetary damages); Lunsford, 155 F.3d
at 1179 (emphasizing that plaintiff only sought monetary
relief); Garrett; 127 F.3d at 1266 (same). This reasoning has
already been followed by the Southern District of New York.
See, e.g., Williams v. Muller, No. 98 Civ. 5204(BSJ), 2000 WL
487954, 2000 U.S. Dist. LEXIS 5286, at *7 (S.D.N.Y. Apr. 24,
2000). The apparent consensus on this point suggests that the
Court would be justified in disallowing a futility exception in
this case, which also presents a mixed claim.
The decision in Cruz v. Jordan, 80 F. Supp.2d 109 (S.D.N.Y.
1999), a case primarily relied on in the Report-Recommendation,
is in accord with the reasoning in Nyhuis. The relief sought
in that case was purely monetary and, therefore, unavailable
through the prison's administrative procedures. The Cruz
court's decision rested entirely on the state's representation
that the available administrative remedies could not provide the
plaintiff with any of the relief sought — monetary damages. The
court noted that, unlike the monetary damages the plaintiff
requested, "the remedies offered by the [Inmate Grievance
Program (`IGP')] were forward looking and remedial only. . . ."
Cruz, 80 F. Supp.2d at 128. Given that the IGP could provide
the plaintiff with no remedy and would not serve any other
purpose intended by the exhaustion requirement, the court
concluded that, under the circumstances of that case, exhaustion
would be a "futile exercise" for the plaintiff. Id. In
contrast, the Plaintiff in the present case seeks not only
monetary damages, but also disciplinary action against certain
Corrections Officers — relief particularly suited to an internal
grievance proceeding. See Cruz, 80 F. Supp.2d at 128 (counting
"the discipline of malfeasant prison staff" and "the provision
of better medical care in the future" among the remedies
available through the IGP).
In addition, it appears that exhausting administrative
remedies in this case may, in fact, serve at least some of the
purposes of the PLRA. The Magistrate Judge asserts that
administrative procedures in this case could not accomplish
purposes such as "settling the cases without federal litigation,
halting the infringing practice, creating a record, allowing the
facility to interpret its own regulations, or narrowing the
issues." Report-Recommendation at 9. It is not clear to the
Court, however, why most of these goals could not be
accomplished through the prison's grievance procedures.
Plaintiff does not allege, and there is no reason to believe,
that lodging a complaint through the normal administrative
procedures would fail to create a record, to cause the prison to
interpret its regulations, or to narrow the issues.*fn1
Moreover, Beeson v. Fishkill Correctional Facility suggests
additional purposes for requiring exhaustion, including allowing
the facility to correct its own mistakes and avoiding the
weakening of prisons' effectiveness by the "frequent and
deliberate flouting" of administrative procedures. Beeson,
28 F. Supp.2d at 895. In fact, the Beeson court asserts that
"protecting administrative agency authority" is one of the "twin
purposes" of the exhaustion requirement. Id. This is,
therefore, an important purpose that would be served by adhering
to the exhaustion requirement just as important as the
"streamlining" goal emphasized in the Magistrate Judge's
Finally, the mere fact that Plaintiff has been transferred to
another prison facility does not necessarily render the
exhaustion requirement moot. It is not clear to the Court why
the Plaintiff cannot initiate a grievance against Defendants
from his current facility, thereby instigating a review of these
individuals' behavior that could lead to sanctions, discipline,
and/or a change in the administration of medical care. See
generally Petit v. Bender, No. 99 Civ. 0969(SHS), 2000 WL
303280, 2000 U.S. Dist. LEXIS 3536 (S.D.N.Y. Mar. 20, 2000)
(requiring exhaustion despite plaintiffs transfer to another
prison facility). Given that the relief sought has punitive and
procedural value beyond the well-being of the Plaintiff himself,
the fact that he is no longer in the same facility may be
irrelevant for purposes of exhaustion.
For the foregoing reasons, the Court hereby recommits this
matter to Magistrate Judge Di Bianco for reconsideration of his
March 17, 2000 Report-Recommendation in light of the entirety of
the relief sought by Plaintiff, to wit, monetary damages and