The opinion of the court was delivered by: Berman, District Judge.
On June 28, 2001, Defendants Corrections Officers Luis Segarra
("Segarra"), Dominick Zaccagnino, Vincent R. Lempka, and Jeffrey J.
Johnson (collectively, "Defendants") moved for summary judgment pursuant
to Federal Rule of Civil Procedure ("Fed.R. Civ.P.") 56 in this matter
involving allegations by Plaintiff Andrew Houze ("Plaintiff" or "Houze")
of 42 U.S.C. § 1983 violations. On June 3, 2002, Plaintiff opposed
Defendant's motion. Plaintiffs Motion Opposing Defendant's Summary
Judgment Request ("Pl.'s Motion").
On June 10, 2002, Magistrate Judge Douglas F. Eaton, to whom the matter
had been referred, issued a report and recommendation ("Report")
recommending that the motion be granted insofar as Plaintiff has failed
to exhaust administrative remedies and that the case be dismissed without
prejudice. For the reasons set forth below, the motion is granted and the
case is dismissed without prejudice.
Plaintiff, proceeding pro se, commenced the instant action on or about
December 27, 1999, and filed an amended complaint ("Amended Complaint")
on or about March 7, 2000. Plaintiff alleges that in August of 1999,
while he was incarcerated at Mid-Orange Correctional Facility
("Mid-Orange"), serving a 10 to 20 year sentence for a conviction of
robbery in the first degree (N.Y. Penal § 160.15) imposed in 1992, he
was assaulted by several corrections officers and, thereafter, denied
treatment by two members of the medical staff in violation of
42 U.S.C. § 1983. Amended Complaint ¶¶ 12, 17 and 25.
Plaintiff "wrote to Superintendent H. Garvin and informed him of the
[a]ssault and injuries and asked him to investigate the matter." Amended
Complaint ¶ 20. Plaintiff also reported the incident to his parents
and "told them to contact the Inspector General's office." Id. ¶
18. On August 30, 1999, Plaintiff's mother called the Inspector General's
office and, on November 29, 1999, following interviews with both
Plaintiff and Segarra, Investigator F. Bigit of the Inspector General's
office issued a report recommending that the matter be closed because he
found "no merit to [Houze's] allegations." Pl.'s Motion, Ex. I. Plaintiff
further states that during a disciplinary hearing brought by Segarra
against Plaintiff on September 2, 1999, Plaintiff "made known to the
[h]earing [o]fficer . . . that he had been assaulted by a group of 5-7
officers . . . and had not received any medical attention for injuries."
Amended Complaint ¶ 22.
Magistrate Eaton's Report recommends that the Amended Complaint be
dismissed without prejudice because "Plaintiff filed this lawsuit before
he exhausted his administrative remedies." Report at 1. The Report also
advises that "[p]ursuant to 28 U.S.C. § 636 (b)(1) and Rule 72(b) of
the [Fed.R.Civ.P.], any party may object to this recommendation within 10
business days after being served with a copy, by filing written
objections Failure to file objections within 10 business days will
preclude appellate review." Report at 6 (citations omitted). As of this
date, no party has filed objections to the Report.
A district court evaluating a magistrate's report may adopt those
portions of the report to which no "specific, written objection" is made,
as long as those portions 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). A
district judge may accept, reject, or modify, in whole or in part, the
findings and recommendations of the magistrate. See DeLuca v. Lord,
858 F. Supp. 1330, 1345 (S.D.N.Y. 1994); Walker v. Hood, 679 F. Supp. 372,
374 (S.D.N.Y. 1988). Where, as here, a party is proceeding pro se,
"leniency is generally accorded." Bey v. Human Resources Admin., 1999 WL
31122, at *2 (E.D.N.Y. Jan. 12, 1999).
Under the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e
("PLRA"), "[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."
42 U.S.C. § 1997e(a).
The facts set forth in the Report are incorporated herein by
reference. The Report is not clearly erroneous and is, therefore,
Plaintiff has failed to exhaust his administrative remedies, in that he
neither filed a formal grievancc nor properly initiated
the harassment grievance procedure.*fn* See Beatty v. Goord,
210 F. Supp.2d 250, 255-56 (S.D.N.Y. 2000) ("[W]riting letters to . . .
the [s]uperintendent . . . [is] not sufficient to comply with the Inmate
Grievance Program") (citation omitted); Grey v. Sparhawk, 2000 WL
815916, at *2 (S.D.N.Y. June 23, 2000) (a complaint "made directly to the
Inspector General's office does not serve to excuse [a] plaintiff from
adhering to the available administrative procedures"). Dismissal of an
action for failure to comply with the PLRA's exhaustion requirement is
without prejudice. Morales v. Mackalm, 278 F.3d 126, 128 (2d Cir. 2002)
The Court adopts Magistrate Eaton's Report and, for the reasons states
therein and herein, grants Defendant's motion insofar as Plaintiff has
failed to exhaust his administrative remedies and dismisses the Amended
Complaint  without prejudice. The ...