The opinion of the court was delivered by: Berman, District Judge.
On or about May 8, 2000, defendants New York State Department of
Correctional Services ("DOCS"), Charles Greiner, Superintendent of Sing
Sing Correctional Facility ("Greiner"), Corrections Officer Peter Warner
("Warner"), and Corrections Officer Albert Figueroa ("Figueroa")
(collectively, "Defendants") moved for summary judgment pursuant to
Federal Rule of Civil Procedure ("Fed.R. Civ.P.") 56(c).*fn1 On or about
June 26, 2000, pro se plaintiff Raymond C. Miller ("Plaintiff") opposed
On March 4, 2002, Magistrate Judge Michael H. Dolinger, to whom the
matter had been referred, issued a report ("Report") recommending that
Defendants' motion be granted and that Plaintiff's Amended Complaint,
dated January 26, 1999, alleging claims under 42 U.S.C. § 1983
("Section 1983 claims") be dismissed without prejudice due to Plaintiff's
failure to exhaust his administrative remedies. Report at 2. On March
20, 2002, Defendants filed objections to the Report ("Defendants'
Objections") contending that the Amended Complaint should be dismissed
with prejudice. As of this date. Plaintiff has neither filed objections
to the Report nor responded to Defendants' Objections.
A district court may adopt those portions of a Magistrate's report to
which no "specific, written objection" is made as long as those sections
are not clearly erroneous. Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140,
149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). "Where a party makes a
`specific written objection' . . . the district court is required to make
a de novo determination regarding those parts of the report." Cespedes
v. Coughlin, 956 F. Supp. 454, 463 (S.D.N.Y. 1997).
Under the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e
(a) No 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, prison, or other correctional facility until
such administrative remedies are exhausted.
(c) . . . (2) In the event that a claim is on its
face, frivolous, malicious, fails to state a claim
upon which relief can be granted, or seeks monetary
relief from a defendant who is immune from such
relief, the court may dismiss the underlying claim
without first requiring the exhaustion of
The Court has reviewed the Report, the record herein, and applicable
legal authorities, along with Defendants' Objections. It concludes, with
one exception noted below that the Report should be affirmed.
It is undisputed that Plaintiff has failed to exhaust his
administrative remedies.*fn2 Report at 4-5. Therefore, Magistrate
Dolinger's recommendation that the Amended Complaint be dismissed without
prejudice is sound. See Porter v. Nussele, 534 U.S. 516, 122 S.Ct. 983,
992, 152 L.Ed.2d 12 (2002) (The PLRA's exhaustion requirement,
42 U.S.C. § 1997e(a), "applies to all inmate suits about prison
life."); Neal v. Goord, 267 F.3d 116, 123 (2d Cir. 2001) (dismissing
without prejudice because "failure to exhaust administrative remedies is
usually a `curable, procedural flaw' that can be fixed by exhausting
those remedies and then reinstituting the suit") (citation omitted).
At the same time, under the PLRA, Defendants are entitled to dismissal
with prejudice with respect to DOCS because DOCS is immune from suit.
42 U.S.C. § 1997e(c)(2). "[I]n the absence of consent, any claims
against the State or one of its agencies or departments . . . are
proscribed by the Eleventh Amendment [to the United States Constitution]."
Dube v. State ...