On the undisputed record before me, plaintiff has failed to exhaust. He
admits that he never filed a Level 1 Grievance. (Dasse Aff.Ex. A) His
letter to Superintendent Artuz cannot be considered a Level 2 appeal,
because he had never filed a grievance that could be heard at the lowest
level. And he never petitioned the Central Office Review Committee at
Level 3. (Eagen Aff. ¶ 10) Thus, he has not exhausted his
Plaintiff cannot be heard to complain that Superintendent Artuz did
nothing in response to his April 1998 letter, because Plaintiff also
failed to follow the expedited grievance procedure that prisoners are
afforded when they are alleging any form of harassment — including
use of excessive force — by a corrections officer. 7 N.Y.C.R.R.Pt.
701.11(a) and (b). Under this expedited procedure, a grievance is filed
with both the Inmate Committee and the harassing employee's supervisor.
If the grievance raises a bona fide harassment issue (as this one would
have), Level 1 review is bypassed and the matter is sent directly to the
Superintendent for review. Had plaintiff utilized this procedure, any
failure by Artuz to render a decision on his matter within twelve working
days could have been appealed to Albany, thus completing the grievance
cycle and exhausting his remedies in a matter of weeks.
Prison officials are entitled to require strict compliance with an
existing grievance procedure. Plaintiff never filed a grievance with
Green Haven's Inmate Grievance Review Committee, so Artuz had no
authority to act on his letter. It is for this reason that a letter to
the Superintendent has been expressly held to be "insufficient" to
warrant considering a matter "effectively grieved." Beatty v. Goord, 2000
WL 288358 *4, 2000 U.S.Dist. LEXIS 3210 *13 (S.D.N.Y. March 16, 2000).
The remedies afforded an aggrieved prisoner are clear, and prisoners have
no authority or ability to invent their own grievance procedures. This
Court certainly has no warrant to substitute its own grievance procedure
for the one that has been made available by DOCS.
Finally, assuming arguendo that plaintiffs letter could be interpreted
as a grievance, it was untimely, since plaintiff did not send it until
almost five months after the incident. Under existing procedures,
untimely grievances will not be considered unless the grievant files an
application for an extension of time, explaining why it was untimely and
seeking consideration of the matter out of time. Hemphill followed no
In short, for myriad reasons, I am forced to conclude that Hemphill
failed to grieve his claim. That ends this lawsuit.
Hemphill asks that I either deem the exhaustion argument waived or that
I decline to apply it retroactively to his case. I cannot grant the
relief he seeks.
Statutory exhaustion requirements are mandatory, and courts are not
free to dispense with them. Bastek v. Federal Crop Ins. Corp., 145 F.3d 90,
94 (2d Cir. 1998). Congress has spoken on the question of exhaustion by
prisoners prior to the commencement of civil rights actions; it is,
therefore, beyond this court's power to waive that requirement for any
allegedly equitable reason. McCarthy v. Madigan, 503 U.S. 140, 144, 112
S.Ct. 1081, 1086, 117 L.Ed.2d 291 (1992).
Under the firm rule of retroactivity, I must refuse plaintiffs
invitation not to apply Porter in his case. The result is harsh, because
the statute of limitations has run and were plaintiff to attempt to
exhaust today (an effort that would by no means be automatically
complaint he might file would be untimely and would have to be
dismissed. Thus, by failing to exhaust in the first instance, plaintiff
has lost any redress for the allegedly unconstitutional attack on his
However, it is not, as plaintiff urges, unconstitutional to apply the
Porter rule retroactively.*fn1 It is quite common to apply a new
decision retroactively, without consideration of the equities in the
matter. Indeed, it is the rule to do so, not the exception. Landgraf v.
USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994);
Rivers v. Roadway Express, Inc., 511 U.S. 298, 114 S.Ct. 1510, 128
L.Ed.2d 274 (1994). In any event, the equities here would not favor
Hemphill. The PLRA was passed in 1996 — a year before plaintiffs
claim accrued. The clear text of the new statute mandated exhaustion
prior to the commencement of any lawsuit concerning "prison conditions."
The Second Circuit decisions declaring that the PLRA's exhaustion
requirement did not apply in cases where, as here, the plaintiff alleged
a particular injury, such as the use of excessive force on him
personally, were not handed down until well after the time when Petitioner
failed to file a timely grievance (late 1997 or early 1998). See, e.g.,
Lawrence v. Goord, 238 F.3d 182 (2d Cir. 2001) (inmates not required to
exhaust administrative remedies before bringing action for particular,
individualized instances of retaliation), vacated by, Goord v. Lawrence,
___ U.S. ___, 122 S.Ct. 1200, 152 L.Ed.2d 139 (2002); Nussle v.
Willette, 224 F.3d 95 (2d Cir. 2000); Snider v. Dylag, 188 F.3d 51, 55
(2d Cir. 1999) (calling it "far from certain" that the PLRA exhaustion
requirement applies where the relief requested in monetary); Liner v.
Goord, 196 F.3d 132 (2d Cir. 1999) (noting a split in circuits and
district courts on this issue, and declining to rule on it). Thus,
plaintiff could not possibly have relied on those decisions. Since
reliance on the Second Circuit's interpretation of the PLRA would be the
only possible factor that might augur in favor of nonretroactive
application of the Supreme Court's decision, there is no equitable basis
to evade the firm rule of retroactivity.
Defendants' motion for summary judgment is granted, and the case is
dismissed in its entirety. The Clerk is directed to close the file.