failing to receive any response to either grievance, plaintiff
filed a notice of appeal directly to Kerick on December 18,
1998. (Id., Ex. G.) Plaintiff did not receive any response and
a grievance hearing was never held.
In plaintiffs criminal trial, the State contended that
plaintiff was paid with the Western Union checks to commit
assault, attempted murder, murder in the second degree and
conspiracy to commit murder. (Id. ¶ 34.) Plaintiff alleges
that he was unable to challenge the State's witness because he
was not allowed to keep the photocopies of the checks. (Id. ¶
35.) He argues that if he had been given the opportunity to
examine the checks prior to trial, he would have been able to
locate and question the individuals responsible for wiring the
money to plaintiff. (Id. ¶ 36.) Plaintiff claims that the
defendants' actions deprived him of a meaningful defense and
that the outcome of the trial would have been different had the
photocopies not been confiscated.
Plaintiff argues that Dry and Lello are directly liable for
deliberately interfering with his right of access to the courts
by confiscating his legal mail. The claims against Watts arise
from his knowledge of the alleged behavior and subsequent
failure to remedy the situation. Similarly, plaintiff alleges
that Thompson and Kerick exhibited deliberate indifference by
failing to remedy the behavior outlined in plaintiffs
In addition to the denial of due process and right of access
to the courts claims raised in the Complaint, plaintiff asserts
that he was denied effective assistance of counsel and subjected
to disparate treatment. (Id. ¶ 54.)
I. Exhaustion Requirement
As an initial matter, defendants argue that plaintiffs claims
regarding the denial or right of access to the courts should be
dismissed because plaintiff has failed to exhaust his
administrative remedies pursuant to the PLRA.
42 U.S.C. § 1997e(a) provides 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, or
other correctional facility until such administrative remedies
as are available are exhausted." Failure to comply with the
exhaustion requirement is an affirmative defense. See Jenkins
v. Haubert, 179 F.3d 19, 28-29 (2d Cir. 1999) ("[A] defendant
in a prisoner § 1983 suit may also assert as an affirmative
defense the plaintiffs failure to comply with the PLRA's
requirements."); see also Hallett v. New York State Dep't of
Corr. Servs., 109 F. Supp.2d 190, 196 (S.D.N.Y. 2000).
Defendants argue that plaintiffs claim of denial of access to
the courts should be dismissed because plaintiff alleges only
that he filed grievances and had not received a response, and
that "pursuant to the PLRA, plaintiff should wait until his
grievances are addressed before filing suit in federal court."
(Defs. Reply Mem.Supp. Mot. Dismiss & Opp.Pl.Mot.Am.Complt. at
4.) We decline to dismiss for failure to exhaust for the
following reasons. First, defendant's did not satisfy their
burden of proving that plaintiff failed to comply with the
PLRA's requirements. See Hallett, 109 F. Supp.2d at 196.
The procedure for filing an inmate grievance is detailed in
N.Y.COMP.CODES R. & REGS. tit. 7, § 701.7 et seq., which
provides, in pertinent part, that:
(a) First step, IGRC. The role of the IGRC is to
resolve grievances or make recommendations for the
resolution of the grievances filed.
(1) Filing the complaint. An inmate must submit
a complaint to the Grievance Clerk within 14
calendar days of an alleged occurrence. . . .
(i) Content. In addition to the grievant's
name, department identification number, housing
unit, program assignment, etc., the grievance must
contain a concise, specific description of the
problem and the action requested. . . .
(4) Hearing. If there is no [informal]
resolution, the full IGRC shall hear and take
action on the complaint. A hearing, if necessary,
must take place within seven working days after
receipt of the grievance.
(b) Second step, appeal to superintendent.