reasoning would be set forth in a subsequent decision. For the
reasons discussed below, the Court grants Defendants' motion for
summary judgment and amends the June 27, 2002 Order to
incorporate the discussion herein.
On August 11, 1999, Rodriguez, while incarcerated at Green
Haven, requested permission to go to the medical clinic in order
to receive treatment for an injury near his groin area, which
had resulted from a baseball game. Rodriguez was treated by
Songh., During the treatment, Songh told Rodriguez to "refrain
from having rough sex in prison." Rodriguez was offended by the
doctor's statement, which he interpreted as insinuating that he
engaged in homosexual activity. In response, Rodriguez became
agitated and started to insult Songh. Because of Rodriguez's
behavior, Songh called for corrections officers to come into the
examination room. In the meantime, Rodriguez attempted to leave
the examination room. Hahn and another officer named Jean
("Jean") came into the examination room and placed Rodriguez on
the floor and Wilson handcuffed him. Rodriguez alleges that the
corrections officers then proceeded to beat him in the
Later that day, Rodriguez requested to see a doctor for the
injuries he allegedly sustained from the beating in the
examination room. Rodriguez claims that although Chakavorty saw
him that day, the doctor refused to treat him.
A. STANDARD OF REVIEW
A motion for summary judgment should be granted where "the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue of material fact and that the
moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "As to
materiality, the substantive law will identify which facts are
material. Only disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the
entry of summary judgment." Anderson v. Liberty Lobby,
477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A "summary
judgment will not lie if the dispute about a material fact is
`genuine,' that is, if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party." Id. at
248, 106 S.Ct. 2505.
Accordingly, a party opposing summary judgment "`may not rest
upon the mere allegations or denials of his pleading, but . . .
must set forth specific facts showing that there is a genuine
issue for trial.'" Id. at 248, 106 S.Ct. 2505. Moreover, "`all
ambiguities and inferences . . . to be drawn from the underlying
facts should be resolved in favor of the party opposing the
motion, and all doubts as to the existence of a genuine issue
for trial should be resolved against the moving party.'" Burns
v. Moore, No. 99 Civ. 0966, 2002 WL 91607, at *3 (S.D.N.Y. Jan.
24, 2002) (quoting Brady v. Town of Colchester, 863 F.2d 205,
210 (2d Cir. 1988)). "Because `most pro se plaintiffs lack
familiarity with the formalities of pleading requirements,
[courts] must construe pro se complaints liberally, applying a
more flexible standard to evaluate their sufficiency.'" Woods
v. Goord, No. 01 Civ. 3255, 2002 WL 731691, at *2 (S.D.N.Y.
Apr. 23, 2002) (quoting Lerman v. Bd. of Elections in the City
of New York, 232 F.3d 135, 140 (2d Cir. 2000)).
For lawsuits related to conditions of prison life, the Supreme
Court held in Porter that the PLRA requires an inmate
to exhaust all prison grievance procedures before seeking
judicial relief, regardless of whether a plaintiffs claims
"involve general circumstances or particular episodes, and
whether [he] allege[s] excessive force or some other wrong."
Porter, 534 U.S. 516, 122 S.Ct. at 992, 152 L.Ed.2d 12.
Furthermore, the Supreme Court stated in Porter that the
available remedies "need not meet federal standards, nor must
they be `plain, speedy, and effective.'" Id. at ___, 122 S.Ct.
at 988 (quoting Booth v. Churner, 532 U.S. 731, 739, 121 S.Ct.
1819, 149 L.Ed.2d 958 (2001)).
As an inmate of the New York State prison system, Rodriguez
was required to avail himself of the remedies provided by the
New York State Department of Corrections ("DOCS"). DOCS provides
for a three-step administrative process for the resolution of
inmate grievances. See N.Y.Comp.Codes R. & Regs. tit. 7, §
701.7 (hereinafter "§ 701.7"). Such grievance procedures require
that an inmate "submit a complaint to the Grievance Clerk within
14 calendar days of an alleged occurrence on Inmate Grievance
Complaint Form [Number] 2131" or on plain paper. Section
701.7(a)(1) ("Level One"). After the complaint is filed, there
is an informal resolution process whereby representatives of the
parties have seven days to resolve the issue. Section
701.7(a)(3). If an informal resolution is not reached by then,
there is a hearing, the result of which is appealable to the
superintendent ("Level Two"). Sections 701.7(a)(4) and
701.7(b)(1). The final step is an appeal to and decision from
the central office review committee ("CORC" or "Level Three")
Section 701.7(c)(1). Rodriguez did not file a grievance for his
claim of the denial of medical treatment. Accordingly, the Court
finds that the available remedies for this claim have not been
exhausted and limits further discussion to the claim of
Rodriguez, in compliance with § 701.7(a)(1), filed a Level One
grievance for the correction officers' alleged use of excessive
force on August 11, 1999. The grievance was received and
numbered 43141-99. (Pl.'s Ex. H.) There was a Level Two hearing
on the matter pursuant to § 701.7(a)(4) and Rodriguez was denied
relief for his excessive force claim based on the finding that
force was appropriately used. (Pl.'s Exs. H and I-1.)
Defendants claim that because Rodriguez failed to properly
appeal his grievance decision to the Superintendent, pursuant to
Level Two procedure, he did not exhaust his available remedies.
(Defendants' Memorandum of Law in Support of Their Motion for
Summary Judgment, dated March 11, 2002 ("Defs.' Mem."), at 7.)
However, Defendants also claim the opposite to be true when they
stated that Rodriguez did appeal the grievance, relying on an
affidavit submitted by James Lagoy ("Lagoy"), the supervisor of
the Inmate Grievance Program. (Defendants' Memorandum of Law in
Support of Their Motion to Dismiss the Complaint, dated April 7,
2000 ("Defs.' Mot."), at 10.) The affidavit submitted by Lagoy
asserts that Rodriguez did file a grievance for his excessive
force claim, and that this claim was appealed to the
superintendent. (Lagoy's Affidavit, dated April 5, 2000, at T 5
("Lagoy's Aff.").) Accordingly, the Court, resolving doubts in
favor of the non-movant, finds that Rodriguez did properly
appeal his decision to the Superintendent. Rodriguez's appeal
was denied by Superintendent Christopher Artuz on October 4,
1999. (Pl.'s Ex. L-1, I-1, and 1-2.)
Although, on this record, the Level Two appeal for the
excessive force claim has been completed under the § 701.7
procedure, Rodriguez cannot exhaust his available remedies
without a final disposition from CORC. Rodriguez maintains that
he submitted an appeal statement to CORC contesting the decision
reached by Superintendent Artuz on the excessive force claim.
(Pl.'s Ex. 1-2). However, merely submitting an appeal is
insufficient for the exhaustion of available remedies; there
must be a final disposition from CORC before such remedies are
considered exhausted. See Kearsey v. Williams, No. 99 Civ.
8646, 2002 WL 1268014, at *2 (S.D.N.Y. June 6, 2002) (citing
Parkinson v. Goord, No. 98 Civ. 6408L, 116 F. Supp.2d 390, 394
(W.D.N.Y. Sept. 28, 2000) (concluding that a final determination
from CORC is necessary for exhaustion of administrative
remedies)). Although Rodriguez asserts that he fully exhausted
all available remedies, (Pl.'s Mot. at 3), these assertions are
insufficient to overcome a motion for summary judgment, even for
a pro se plaintiff. "Proceeding pro se does not otherwise
relieve a litigant of the usual requirements of summary
judgment, and a pro se party's bald assertions unsupported by
evidence, are insufficient to overcome a motion for summary
judgment." Id. at 393 (citing Carbonell v. Goord, 99 Civ.
3208, 2000 WL 760751, at *5 (S.D.N.Y. June 13, 2000)). Rodriguez
has provided no evidence that he received a final determination
from CORC before he commenced this action.
Consequently, the Court concludes that on the record before it
there is no issue of material fact as to whether Rodriguez
exhausted his administrative remedies and finds that Rodriguez
has not exhausted his available remedies as required by the
PLRA. Rodriguez did not file a grievance for his claim of denial
of medical treatment, and did not receive a final disposition
from CORC for his excessive force claim. Accordingly, the Court
grants Defendants' motion for summary judgment pursuant to
42 U.S.C. § 1997(e)(a) for failure to exhaust available
III. CONCLUSION AND ORDER
For the reasons set forth above, it is hereby
ORDERED that the Court's Order dated June 27, 2002 is
amended to incorporate the discussion set forth herein; and it
ORDERED that the defendants motion for summary judgment is
The Clerk of Court is directed to close this case.