delaying the processing of a grievance, by giving
inmates the right to appeal if the grievance is not acted upon within a
specified length of time.
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 mere filing of grievance, court would
dismiss complaint without prejudice to give plaintiff opportunity to
Defendants' motion for summary judgment (Docket #29) is granted, and
the complaint is dismissed without prejudice.
IT IS SO ORDERED.
© 1992-2003 VersusLaw Inc.