arose out of two alleged assaults on plaintiff by other inmates.
The gist of plaintiffs claims is that defendants failed to
protect him from the assaults, in violation of plaintiffs rights
under the Eighth Amendment to the United States Constitution.
By Order entered on December 4, 2001, plaintiffs claims
against three of the defendants were dismissed with prejudice.
Claims remain against Correction Officer Scott Beldock and an
unidentified, "John Doe" defendant. Beldock has now moved for
summary judgment on the ground that plaintiff has failed to
exhaust his administrative remedies as required by the Prison
Litigation Reform Act of 1995 ("PLRA"), 42 U.S.C. § 1997e(a),
which provides that "[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." Because I find that
plaintiff has failed to exhaust his administrative remedies, his
complaint is dismissed.
As stated, the PLRA requires that an inmate plaintiff must
exhaust his available administrative remedies before commencing
a lawsuit in federal court with respect to prison conditions. In
New York State, those remedies consist of a three-step review
process. First, "an inmate must submit a complaint to the
Grievance Clerk within 14 calendar days of an alleged
occurrence. . . . Exceptions to this time limit may be approved
by the Inmate Grievance Program ["IGP"] supervisor based on
mitigating circumstances (e.g., attempt to resolve informally
by the inmate, referrals back to the IGP by the courts, etc.)."
7 N.Y.C.R.R. § 701.7(a)(1). The grievance is then submitted to
the inmate grievance resolution committee ("IGRC") for
investigation and review. If the IGRC's decision is appealed,
the inmate may appeal to the superintendent of the facility, and
if the superintendent's decision is appealed, the Central Office
Review Committee ("CORC") makes the final administrative
determination. See 7 N.Y.C.R.R. § 701.7. Only upon exhaustion
of these three levels of review may a prisoner seek relief
pursuant to 42 U.S.C. § 1983 in federal court. Neal v. Goord,
267 F.3d 116, 122 (2d Cir. 2001); Sulton v. Greiner, No. 00
Civ. 0727(RWS), 2000 WL 1809284, at *3 (S.D.N.Y. Dec. 11, 2000);
Petit v. Bender, No. 99 Civ. 0969(SHS), 2000 WL 303280, at
*2-3 (S.D.N.Y. Mar. 22, 2000).
Here, the complaint itself states that "[p]laintiff did not
grieve and/or appeal this claim due to the fact that being
assaulted by fellow inmates is not a grievable issue." Amended
Complaint at 1. That assertion is incorrect, however. Earlier
this year, the Supreme Court made clear that "the PLRA's
exhaustion requirement applies to all inmate suits about prison
life, whether they involved general circumstances or particular
episodes." Porter v. Nussle, 534 U.S. 516, ___, 122 S.Ct. 983,
992, 152 L.Ed.2d 12 (2002). Therefore, under Nussle, plaintiff
was required to exhaust his administrative remedies before
commencing this action.
Plaintiff also contends that the court should not apply the
exhaustion requirement to him because at the time that he
commenced this action, the Supreme Court had not yet decided
Nussle, and the law in the Second Circuit was that the PLRA's
exhaustion requirement did not apply to claims pertaining to
isolated incidents affecting particular inmates, as opposed to
claims concerning general prison circumstance or conditions.
See Nussle v. Willette, 224 F.3d 95, 100 (2d Cir. 2000),
rev'd sub nom. Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983,
152 L.Ed.2d 12 (2002).
Alternatively, plaintiff contends that he has exhausted his
administrative remedies, because he filed a grievance concerning
the incident at issue in October 2001. That grievance was
rejected as untimely, since it was filed well beyond the
fourteen-day time limit provided for by the regulations. See
Plaintiffs Reply to Defendant's Motion for Summary Judgment
(Docket # 14).
After considering the matter, I believe that the best course
of action here is to dismiss the complaint without prejudice to
afford plaintiff an opportunity to exhaust his administrative
remedies. While the Court is not insensitive to plaintiffs
argument that, at the time he filed the complaint in this
action, exhaustion was not required in this circuit, that
argument should be presented in the first instance to the
appropriate administrative authorities, in order to give the
fullest possible effect to Congress's intentions in enacting the
PLRA, as that Act has been interpreted by the Supreme Court.
See Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir. 2002) ("the
dismissal of claims for failure to exhaust should be without
Although plaintiffs previous attempt to file a grievance was
found to be untimely, that occurred prior to the Nussle
decision. Should plaintiff choose to file a new grievance, he
can thus attempt to show that the intervening change in the law
occasioned by Nussle constitutes "mitigating circumstances"
that would justify an exception to the time limit imposed by the
regulations. 7 N.Y.C.R.R. § 701.7(a)(1).
Defendant's motion for summary judgment (Docket # 9) is
granted, and the complaint is dismissed without prejudice.
Plaintiffs motion for various relief (Docket # 14) is denied as
IT IS SO ORDERED.