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June 18, 2002


The opinion of the court was delivered by: VICTOR Marrero, United States District Judge


Plaintiff Michael Indelicato ("Indelicato"), appearing pro se, brings this action for injunctive relief and monetary damages under 42 U.S.C. § 1983 and the principles enunciated in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1999). Indelicato alleges that certain corrections officers at the New York Metropolitan Correctional Center ("MCC") violated his constitutional rights on September 14, 2000 by placing him on "refusal status"*fn1 when he declined to pay an increased contribution to the Inmate Financial Responsibility Program ("IFRP"), 29 C.F.R. § 525.10-.11. (See Compl. § VI.)

Defendants Hector Suarez, Indelicato's case manager; Christine Dynan, the Case Manager Coordinator; and Donald Parks, the Prison Warden (collectively "Defendants"), move for dismissal pursuant to Federal Rule of Civil Procedure 12(c) on the grounds that Indelicato failed to: (1) exhaust his administrative remedies, as required by the Prison Litigation Reform Act of 1995 ("PLRA"), 42 U.S.C. § 1997 (e)(a), prior to filing his claim; (2) adequately plead a claim under Bivens and (3) exhaust his administrative remedies, as required by the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2675 (a), to the extent that Indelicato's claim can be construed as a claim under that statute. Defendants also move to amend their answer to the complaint to include an affirmative defense of qualified immunity for defendants Suarez and Dynan. Indelicato moves for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). For the reasons set forth below, Indelicato's motion is denied and Defendants' motions are granted.


The IFRP is designed to help inmates pay off their outstanding debts. See 29 C.F.R. § 525.10-.11. In the program, prison staff help inmates develop financial plans and monitor the inmates' progress in meeting their financial obligations. Id. On September 13, 2000, Suarez and Dynan informed Indelicato that unless he increased his monthly contributions to the IFRP, he would be placed on "retinal status." (Compl. §§ IV(1)-(3).) Indelicato objected, claiming that rather than refusing to participate in the program, he was merely refusing to pay the newly increased amount. (Compl. § IV.) The following day, Indelicato was again informed both in person and in writing that if he did not pay the new amount, he would be placed on "refusal status." (Id. at § IV(1), (3).)

In an effort to pursue the inmate remedy process, Indelicato asserts that he requested an Administrative Remedy Request Form from Suarez three times but never received one. (Compl. §§ II, V(e).) Suarez told him to get the form from his unit counselor, who was away for two weeks. (Plaintiff's Answers to Interrogatories and Request For Documents By Defendants ("Pl.'s Answers") ¶ 8(e), attached to Plaintiff's Declaration, dated April 4, 2002 ("Pl.'s Decl."), Ex. C.) Indelicato then commenced this action, filing a complaint dated September 16, 2000. He allegedly tried to submit the administrative remedy form again on February 11, 2001, after he was transferred to the Elkton BOP facility, but claims that his unit counselor refused to file the form because she was trying to work out an informal resolution. (Plaintiff's Memorandum in Opposition of the Defendant's Motion for Judgment on the Pleadings ("Pl.'s Mem.") at 4-5.) He subsequently submitted the form on February 5, 2002, after he was transferred to the BOP's Metropolitan Detention Center in Brooklyn. (Id.)



When examining a motion for judgment on the pleadings, the Court must accept all well-pleaded allegations of the non-movant as true and draw all reasonable inferences in his favor. See Sheppard v. Beerman, 94 F.3d 823, 827 (2d Cir. 1996). Granting such a motion is proper only when it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. Because Indelicato is acting pro se in this matter, the court must "construe the complaint liberally such that the strongest possible argument is raised" in his favor. Richardson v. Hillman, No. 00 Civ. 8995, 2002 WL 745579, at *3 (S.D.N.Y Apr. 18, 2002); see also Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995). Moreover, in deciding a motion to dismiss involving a pro se plaintiff, the court may look beyond the complaint to the plaintiff's opposition papers. Pagan v. New York State Div. of Parole, No. 98 Civ. 5840, slip op., 2002 WL 398682, at *3 (S.D.N.Y. Mar. 13, 2002). Finally, when deciding such a motion, the court may consider any documents incorporated into a complaint by reference or upon which the plaintiff relied in drafting his pleadings. See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991).


Defendants move to dismiss this action because Indelicato failed to exhaust his administrative remedies before filing a complaint in this Court. The PLRA provides that "[n]o action shall be brought with respect to prison conditions under . . . Federal law, by a prisoner . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997 (e)(a). In Porter v. Nussle, ___ U.S. ___, 122 S.Ct. 983, 992 (2002), the Supreme Court held that the PLRA's exhaustion requirement applies to all inmate suits related to prison conditions. This requirement extends to cases, such as this one, where a plaintiff seeks a remedy not available through the administrative process, such as monetary damages. See Booth v. Churner, 532 U.S. 731, 733-34 (2001) (holding that exhaustion is required under the PLRA even if the plaintiff seeks only money damages and money damages are not available as relief). The purpose of the exhaustion requirement is to improve prison administration, filter out frivolous claims, and clarify the contours of controversies for cases that are ultimately brought to court. Porter, 122 S.Ct. at 988.

In the instant case, Indelicato was required to seek administrative relief under the BOP's four-step Administrative Remedy Program (the "ARP"). Under the ARP, an inmate must first attempt to informally resolve his claims. See 28 C.F.R. § 542.13 (a). Second, if dissatisfied with the informal resolution, the inmate must use a designated form to submit a written "Administrative Remedy Request" to the Warden within twenty days of the events triggering the complaint. See 28 C.F.R. § 542.14 (a). Third, if the formal request is denied, the inmate must appeal to the appropriate BOP Regional Director. See 28 C.F.R. § 15 (a). Finally, an inmate must appeal a negative decision by the BOP Regional Director to the BOP's Office of General Counsel within thirty days of the date of the Regional Counsel's decision. Id. The inmate may file an action in federal court only after these four steps have been completed.

Indelicato does not allege that he completed the ARP's four steps before filing his complaint in this Court.*fn2 Rather, Indelicato contends that he exhausted all of his available remedies after he completed step one, because the grievance form required in step two was not available to him. (Compl. ¶¶ 2, v(e); Pl.'s Mem. at 4-5.) An inmate may defeat a motion to dismiss even if he has not technically exhausted his administrative remedies when he has made a "reasonable attempt" to do so, "especially where it is alleged that corrections officers failed to file the inmate's grievances or otherwise impeded or prevented his efforts." O'Connor v. Featherston, No. 01 Civ. 3251, slip op., 2002 WL 818085, at *2 (S.D.N.Y. Apr. 29, 2002). The question before this Court, therefore, is whether Indelicato made a "reasonable effort" to exhaust his administrative remedies before filing his claim.

Indelicato claims that: (1) he made a reasonable effort by requesting the step-two grievance form three times; and (2) because his requests were denied, he had no available administrative remedies.*fn3 Inmates who have made significant efforts to obtain administrative relief have exhausted their administrative remedies, even when they have not pursued the proper procedure. See O'Connor, 2002 WL 818085, at *2-3 (holding that plaintiff who was denied requests for forms by unhelpful prison officials but went on to write letters, file and appeal a FOIA request, and make several other inquiries, had made a reasonable attempt to exhaust his administrative remedies); Rodriguez v. Hahn, No. 99 Civ. 11663, 2000 WL 1738424, at *2 (S.D.N.Y. Nov. 22, 2000) (holding that a pro se plaintiff who was unfamiliar with the process and failed to file a grievance form, but wrote numerous letters and memoranda to various prison officials had made a reasonable attempt to exhaust his administrative remedies). Denial of forms, however, does not itself constitute a denial of remedies. See M.F. v. Reish, No. 95 Civ. ...

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