The opinion of the court was delivered by: Boyle, United States Magistrate Judge.
MEMORANDUM OPINION AND ORDER
By order of the undersigned, dated April 4, 2002, the pro se
plaintiff, Carl A. Ligon, Jr., and counsel for the County of
Suffolk and its named defendant correction officers were
directed to show cause, in writing, on or before May 3, 2002,
why this action should not be dismissed, without prejudice,
pursuant to Porter v. Nussle, 534 U.S. 516, 122 983, 152
L.Ed.2d 12 (Feb. 26, 2002).
This action was commenced by counsel, Harry H. Kutner, Jr.,
representing the plaintiff, on January 13, 2000. The action is
filed pursuant to 42 U.S.C. § 1983, 1985(3) and 1988, and seeks
money damages arising from a single episode of alleged assault
by Suffolk County corrections officers at the Suffolk County
Jail on January 21, 1999. The plaintiff seeks damages based on
the use of excessive force, false imprisonment (prisoner
isolation) and malicious prosecution (violation of prison
regulations). Supplemental jurisdiction of the district court is
invoked with respect to claims for abuse of process, malicious
prosecution and false arrest. At the time of the commencement of
this action the plaintiff was no longer an inmate at the Suffolk
County Jail, having been transferred from that facility on April
19, 1999 to the New York State Hudson Correctional Facility in
The complaint is devoid of any allegations as to exhaustion of
administrative remedies at the Suffolk County Jail prior to the
initiation of this action. This is confirmed by records attached
to the County Attorney's submission in support of dismissal, by
Assistant County Attorney John D. Aspland, Esq. These records
indicate that at the hearing conducted pursuant to New York
General Municipal Law § 50 h, the plaintiff testified that he
did not file any complaint or grievance with the jail
authorities prior to commencement of this action. See Exhibit
B at 75-76, annexed to County submission, dated May 2, 2002.
Also annexed at Exhibit A to the County's submission is a copy
of the applicable Correctional Facility Rules & Regulations of
the Suffolk County Sheriff (Revised October 1976) with respect
to the "Resident Grievance and Complaint Procedure" for jail
inmates. See Exhibit A at pp. 8-9.
Counsel for the plaintiff was permitted to withdraw from this
action on April 1, 2002. The pro se plaintiff failed to appear,
contrary to specific instructions, at a conference held on April
1, 2002 at 10:00 a.m., the return date of his attorney's
application to be relieved, and failed to make any submission on
this show cause order. The court has subsequently been informed
that the defendant on or before April 2002 was returned to
custody and is presently incarcerated at the Suffolk County
The New York State prison system maintains a website where a
prisoner's whereabouts in the New York State prison system may
be tracked. The court will take judicial notice of the records
posted by the New York State Department of Correctional Services
as to the plaintiff herein. See www.docs.state.ny.us at Inmate
Information-Location/Status Legal Dates/etc. (Carl Ligon, DIN
99R2348). This record states that the plaintiff was transferred
upstate to the Mid Hudson Correctional Facility maintained by
the State of New York on April 19, 1999.
The Prison Litigation Reform Act of 1995 ("PLRA"),
42 U.S.C. § 1997e(a) (1994 ed., Supp. V), provides:
[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, prison, or other correctional facility until
such administrative remedies as are available are
exhausted. (Emphasis added.)
In Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152
L.Ed.2d 12 (2002), the court held that the reference to "prison
conditions" noted above in the PLRA applies to "all inmate suits
about prison life, whether they involve general circumstances or
particular episodes." Id. at 992. Where however, as here, an
administrative officer has no authority to act on the subject of
a complaint, the inmate has nothing to exhaust. Booth v.
Churner, 532 U.S. 731, 736, 121 S.Ct. 1819, 1822 n. 4, 149
L.Ed.2d 958 (2001) (The PLRA requires administrative exhaustion
of remedies where the grievance process is authorized to provide
some responsive action, even though it is not authorized to
provide money damages which the plaintiff seeks); see also
Stanislas v. Tolson, No. 00-5419, 2002 WL 718441, at *1
(E.D.N.Y. Mar. 19, 2002) (Raggi, J.). Plaintiffs who are not in
custody at the time of the commencement of an action challenging
prison conditions are not considered "prisoners" under section
1997e(a) and therefore are not subject to the exhaustion
requirement under this provision. Greig v. Goord,
169 F.3d 165, 167 (2d Cir. 1999). As noted in Cox v. Malone, No.
00-8355, 2002 WL 727019 (S.D.N.Y. Apr. 24, 2002) "it makes no
sense to apply this procedural requirement to former inmates who
can no longer avail themselves of prison grievance procedures."
Id. at *4.
The same reasoning should apply here. Even though the
plaintiff remained an inmate, and therefore was a "prisoner"
under section 1997e(a), when the action was commenced he was not
a prisoner at the correctional facility where the incident
allegedly occurred, having been transferred to an upstate
facility maintained by the State of New York. Thus the focus
here must be on the availability of an administrative remedy at
the time this action was commenced.
Such an administrative remedy is not available here at the
Suffolk County Jail. The County has provided a copy of the
relevant Suffolk County Correctional Facility Rules and
Regulations relating to Resident Grievance and Complaint
Procedures. (County Exhibit A at 8.) This states that "there are
several ways you may air your complaints while you are a
resident of this facility." Id. The Informal Procedures
involve "speak[ing] to the tier representative of the Resident
Liaison Council" and attempting to resolve the problem. Id.
The formal procedure of filing a written grievance is available
in the event that "a mutually acceptable solution cannot ...