The opinion of the court was delivered by: David G. Larimer, United States District Judge
Plaintiff, Benny Santos, an inmate in the custody of the New York State
Department of Correctional Services ("DOCS"), commenced this action under
42 U.S.C. § 1983 on December 22, 2000. Plaintiff, who is now
represented by court-appointed counsel, alleges various violations of his
constitutional rights arising out of certain incidents that occurred in
2000, while he was incarcerated at Attica Correctional Facility.
Section 1997e(a) provides that "[n]o action 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." 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. . . ."
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); Peoples v. Beldock, 212 F. Supp.2d 141,
142 (W.D.N.Y. 2002). At each step, there are time limits within which the
grievance or appeal must be decided, and "matters not decided within the
time limits [prescribed by the regulations] may be appealed to the next
step." 7 N.Y.C.R.R. § 701.8.
Prior to the Supreme Court's decision in Nussle, 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. See
Nussle v. Willette, 224 F.3d 95 (2d Cir. 2000). In Porter v. Nussle,
however, the Supreme Court held that "§ 1997e(a)'s exhaustion
requirement applies to all prisoners seeking redress for prison
circumstances or occurrences." 534 U.S. at 520.
In the case at bar, plaintiff alleges that he filed a grievance at
Attica on or about May 25, 2000. Plaintiff's Affidavit (Docket #36)
¶ 3. He states that about two weeks later, he was transferred to a
different facility, and that he never received any communication
regarding his grievance. Id. ¶¶ 4, 5. He does not allege that he ever
took any further steps to prosecute or appeal his grievance, and he does
not contend that he was in any way prevented from doing so. Plaintiff
also does not deny defendants' assertion that he did not appeal to CORC.
It is clear, then, that plaintiff has not exhausted his administrative
remedies with respect to his claims in this suit. He contends, however,
that Nussle should not be applied here because it is in conflict with New
York State regulations concerning the filing and appeal of grievances.
Specifically, plaintiff notes that the regulations provide that an inmate
"may" appeal a failure to respond to his grievance, not that he "must" do
so. From this, plaintiff concludes that under the regulations, the inmate
is not required to appeal, and that plaintiff's failure to appeal when he
got no response to his grievance therefore did not constitute a failure
to exhaust administrative remedies.
Exhaustion, however, is a federally-imposed prerequisite to § 1983
suits. Under state regulations, inmates can certainly choose not to
appeal from an adverse decision, but by doing so, they will forfeit the
right to bring an action in federal court. There is no conflict, then,
between the state regulations and the PLRA's exhaustion requirement as
interpreted by Nussle.
Plaintiff also argues that the Court should not apply Nussle
retroactively to this action, which was filed before the Supreme Court's
decision in that case was handed down. This Court rejected a similar
argument in Peoples v. Beldock, 212 F. Supp.2d 141, 143 (W.D.N.Y. 2002),
holding that "the best course of action here is to dismiss the complaint
without prejudice to afford plaintiff an opportunity to exhaust his
administrative remedies." I reach the same conclusion here.
Moreover, even if plaintiff were now barred from seeking further
administrative review of his grievance, that would not mean that Nussle
should not be applied. "It is quite common to apply a new decision
retroactively, without consideration of the equities in the matter.
Indeed, it is the rule to do so, not the exception." Hemphill v. New
York, 198 F. Supp.2d 546, 550 (S.D.N.Y. 2002) (applying Nussle
retroactively) (citing Landgraf v. USI Film Products, 511 U.S. 244
(1994), and Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994)). See
generally Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 97 (1993)
("When [the Supreme] Court applies a rule of federal law to the parties
before it, that rule is the controlling interpretation of federal law and
must be given full retroactive effect in all cases still open on direct
review and as to all events, regardless of whether such events predate or
postdate [the] announcement of the rule"). See also Khalild v. Reda, No.
00 CIV. 7691, 2003 WL 42145, *2 n. 2 (S.D.N.Y. Jan. 7, 2003) ("`the broad
exhaustion requirement announced in Nussle applies with full force' to
litigants in such a situation," i.e., litigants who filed complaints
before Nussle was decided) (quoting Espinal v. Goord, No. 01 CIV. 6569,
2002 WL 1585549, *2 n. 3 (S.D.N.Y. July 17, 2002)); White v. State of New
York, 2002 WL 31235713, *2 (S.D.N.Y. Oct. 3, 2002) ("Courts in this
Circuit have consistently applied [Nussle] retroactively") (citing
Plaintiff also contends that there are factual issues here that
preclude summary judgment. Those alleged issues, however, have no bearing
on whether plaintiff has satisfied the exhaustion requirement. Since he
has not done so, defendants' motion for summary judgment is granted, and
the complaint is dismissed without prejudice. See Reyes v. Punzal,
206 F. Supp.2d 431, 434 (W.D.N.Y. 2002) (where inmate plaintiff failed to
show that he ever went beyond ...