administrative remedies is not altogether clear, plaintiff does
not contradict defendant's contention that plaintiff did not
pursue all steps of the grievance process. Plaintiff also makes
no contention that he did pursue his grievance to CORC.
Plaintiff argues in his memorandum of law that he did exhaust
administrative remedies, but, for the most part, plaintiff goes
on only to discuss general legal principles, which he does not
attempt to relate to the facts of this case.
I recognize that as a pro se litigant, plaintiff is entitled
to have his papers given a liberal construction. Haines v.
Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652
(1972). I also recognize that in the Second Circuit, failure to
comply with the PLRA's exhaustion requirement is viewed as an
affirmative defense, see Jenkins v. Haubert, 179 F.3d 19,
28-29 (2d Cir. 1999), and that accordingly, defendant bears the
burden of proving plaintiffs failure to comply with the
exhaustion requirement. See Gonzalez v. Officer in Charge of
Barber Shop, No. 99 Civ. 3455, 2000 WL 274184, at *3 (S.D.N.Y.
Mar. 13, 2000); Howard v. Goord, No. 98 Civ. 7471, 1999 WL
1288679, at *2-3 (E.D.N.Y. Dec. 28, 1999). I find, however, that
defendant has carried that burden, and that even given a
generous construction, plaintiffs statement that he has
exhausted his administrative remedies is contradicted by the
At most, it appears from plaintiffs statements that he
submitted his grievance by placing it in a mailbox at Wende
Correctional Facility, but that he received no response, or that
no action was ever taken on the grievance, so he took no
additional steps to seek administrative review. That is not
enough to satisfy the PLRA's exhaustion requirement, however.
Even assuming that plaintiff never received a response to his
grievance, he had further administrative avenues of relief open
to him. Specifically, 7 N.Y.C.R.R. § 701.7 sets forth certain
time limits within which inmate grievances must be dealt with.
For example, the regulation states that when an inmate files a
grievance, "IGRC representatives shall have up to seven working
days to review a grievance and resolve it informally." If no
resolution is reached, the full IGRC must hold a hearing "within
seven working days after receipt of the grievance." Following
the hearing, a "written decision, including the reasons
therefore, [sic] must be communicated to the grievant . . .
within two working days." 7 N.Y.C.R.R. §§ 701.7(a)(3), (a)(4),
(a)(4)(v). In addition, § 701.8 provides that "matters not
decided within the time limits [prescribed by the regulations]
may be appealed to the next step."
Thus, even if plaintiff received no response to his grievance,
he could have appealed it to the next level. By not doing so,
plaintiff failed to exhaust his administrative remedies as
required by the PLRA as a prerequisite to filing this lawsuit.
See Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 988, 152
L.Ed.2d 12 (2002) ("All `available' remedies must now be
exhausted; those remedies need not meet federal standards, nor
must they be `plain, speedy, and effective'"); see Waters v.
Schneider, No. 01 CIV. 5217, 2002 WL 727025, *2 (S.D.N.Y. Apr.
23, 2002) ("Waters does not allege that he filed any appeals
after the IGRC allegedly failed to respond to his grievance. He
therefore did not exhaust the available administrative remedies
prior to filing this lawsuit"); Burns v. Moore, No. 99 Civ.
0966, 2002 WL 91607, *8 (S.D.N.Y. Jan. 24, 2002) ("even if
Plaintiff received no response to his initial grievance,
Plaintiff could have sought the next level of review, in this
case, to the prison superintendent. In the absence of any
attempt to do so, the Court cannot
conclude that Plaintiff exhausted his available administrative
remedies") (citation omitted). There is no suggestion in the
record that plaintiff was somehow prevented from appealing his
grievance, and even if plaintiff believed that further attempts
to seek relief through administrative channels would prove
fruitless, "the alleged ineffectiveness of the administrative
remedies that are available does not absolve a prisoner of his
obligation to exhaust such remedies when Congress has
specifically mandated that he do so." Giano v. Goord,
250 F.3d 146, 150-51 (2d Cir. 2001).
Prior to enactment of the PLRA, the district court had
discretion to waive the exhaustion requirement of § 1997e(a) and
decide the case on the merits. Alexander v. Hawk,
159 F.3d 1321, 1323 (11th Cir. 1998). However, the 1996 Amendments to the
PLRA made exhaustion of administrative remedies mandatory. See
Nussle, 122 S.Ct. at 992 ("Once within the discretion of the
district court, exhaustion in cases covered by § 1997e(a) is now
Where a plaintiff has failed to exhaust his administrative
remedies as required by the PLRA, the court can either dismiss
the action without prejudice, or stay the action pending
exhaustion. Gonzalez v. Officer in Charge of Barber Shop on
Duty on May 13, 1999, No. 99 CIV. 3455, 2000 WL 274184, *3
(S.D.N.Y. Mar. 13, 2000). See, e.g., Soto v. Elston,
993 F. Supp. 163, 164 (W.D.N.Y. 1998) (dismissing without prejudice
for failure to exhaust administrative remedies); Cruz v.
Jordan, 80 F. Supp.2d 109, 121 (S.D.N.Y. 1999) (staying action
pending exhaustion of administrative remedies).
Since it does not appear that plaintiff's grievance is
currently under review, or that plaintiff has taken any steps to
appeal it, I believe that the better course of action is to
dismiss plaintiff's complaint without prejudice to give
plaintiff the opportunity to exhaust his administrative
remedies. See Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir.
2002) ("the dismissal of claims for failure to exhaust should be
without prejudice"); Conde v. Young, No. 3:99CV253, 2000 WL
340748, *2 (Conn. Jan. 31, 2000) (denying plaintiffs motion to
stay action, and dismissing without prejudice, since plaintiff
had only recently begun to exhaust his administrative remedies,
and he would not be precluded from refiling action after
exhausting those remedies).
Defendant's motion for summary judgment (Docket # 12) is
granted, and the complaint is dismissed without prejudice.
IT IS SO ORDERED.