The opinion of the court was delivered by: Stein, District Judge
Damecha Harris, an inmate at the Green Haven Correctional Facility,
brings this action pro se pursuant to 42 U.S.C. § 1983 alleging that
defendants — all employees of the New York State Department of
Correctional Services — violated his Eighth Amendment right to be
free from cruel and unusual punishment by using excessive force against
him and denying him adequate medical attention. In his complaint, Harris
seeks injunctive, declaratory, and monetary relief. Defendants now move
pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the complaint on the ground
that plaintiff failed to exhaust his administrative remedies as required
by the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a).
Because plaintiff did not exhaust the available administrative remedies
prior to commencing this action, the complaint must be dismissed.
Harris alleges that on November 17, 2000, he was hit on the head by an
object thrown at him by a New York State corrections officer. (Compl.
¶ 13.) Thereafter, Harris sought medical treatment at the Green Haven
clinic. (Compl. ¶ 14.) Harris alleges that on that same date,
corrections officers attacked him twice, once in the medical clinic and
once in cellblock "A". (Compl. ¶¶ 15, 17.) He contends that
supervisory corrections officers were present during the assaults but did
nothing to stop them. (Compl. ¶¶ 15, 20-22.) Harris also claims that
he was denied adequate medical treatment following the alleged assaults.
(Compl. ¶¶ 25, 26.) Furthermore, Harris contends that managerial
personnel at Green Haven learned of the assaults but failed to investigate
them and take corrective action.
Defendants have now moved to dismiss the complaint.*fn1 This motion to
dismiss has now been fully briefed.
A. Legal Standards for Motion to Dismiss the Complaint
As a preliminary matter, the Court must address the appropriate
standard of review for defendants' motion. Defendants move pursuant to
Fed.R.Civ.P. 12(b)(6) to dismiss Harris' complaint for failure to state a
claim upon which relief can be granted. However, when a defendant moves
for dismissal on the ground that the plaintiff has failed to exhaust
administrative remedies, the defendant is raising a challenge to the
court's jurisdiction See Howell v. INS, 72 F.3d 288, 291 (2d Cir. 1995)
(citing DiLaura v. Power Auth., 982 F.2d 73, 79 (2d Cir. 1992)) ("If a
party fails to exhaust administrative remedies, then the court may dismiss
the action because subject matter jurisdiction does not exist."); Long
v. Lafko, 2001 WL 863422, at *1 (S.D.N.Y. July 31, 2001) ("Courts in the
Second Circuit have treated failure to exhaust administrative remedies
under the PLRA as implicating a court's subject matter jurisdiction.").
Accordingly, defendants' motion is properly
construed as a motion to
dismiss the complaint for lack of jurisdiction over the subject matter
pursuant to Rule 12(b)(1). See Makarova v. United States, 201 F.3d 110,
113 (2d Cir. 2000) ("A case is properly dismissed for lack of subject
matter jurisdiction under Rule 12(b)(1) when the district court lacks the
statutory or constitutional power to adjudicate it.").
A plaintiff bears the burden of proving the existence of subject matter
jurisdiction by a preponderance of the evidence. See Makarova, 201 F.3d
at 113. In considering a motion to dismiss for lack of subject matter
jurisdiction, a court must "accept as true all material factual
allegations in the [c]omplaint and refrain from drawing inferences in
favor of the party contesting jurisdiction." Serrano v. 900 5th Ave.
Corp., 4 F. Supp.2d 315, 316 (S.D.N.Y. 1998) (citations omitted). The
Court may consider evidence outside the pleadings, such as affidavits and
other documents. See Makarova, 201 F.3d at 113. Furthermore, where a
plaintiff appears pro se, the Court must "read the pleadings . . .
liberally and interpret them to raise the strongest arguments that they
suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (internal
quotation marks omitted).
B. Plaintiff Failed to Exhaust His Administrative Remedies
The Prison Litigation Reform Act of 1995 ("PLRA") 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."
42 U.S.C. § 1997e(a). In Porter v. Nussle, 534 U.S. 516 (2002), the
U.S. Supreme Court held that the "PLRA's exhaustion requirement applies
to all inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege excessive
force or some other wrong."*fn2 This requirement also extends to cases
— such as this one — where a plaintiff seeks a remedy not
available through the administrative process, such as monetary damages.
See Booth v. Churner, 532 U.S. 731, 733-34 (2001).
Nussle mandates that every claim asserted by a prisoner must first be
grieved administratively prior to seeking judicial relief. Nussle, 534
U.S. at 524; see also Baskerville v. Blot, 224 F. Supp.2d 723, 728
(S.D.N.Y. 2002). This means that the prisoner "must pursue his challenge
to the conditions in question through the highest level of administrative
review prior to filing his suit" in federal court. Flanagan v. Maly, No.
99 Civ. 12336, 2002 WL 122921, at *2 (S.D.N.Y. Jan. 29, 2002). This
includes the exhaustion of "all appellate remedies provided within the
system." Waters v. Schneider, No. 01 Civ. 5217, 2002 WL 727025, at *1
(S.D.N.Y., Apr. 23, 2002) (citing Fletcher v. Haase, No. 99 Civ. 9549,
2002 WL 313799, at *1 (S.D.N.Y. Feb. 27, 2002)).
New York state's Inmate Grievance Procedure (IGP) is a three-step
inmate grievance process that prisoners must exhaust before filing a
complaint in federal court. See N.Y. Correction Law § 139; N.Y.
Comp. Codes R. & Regs. tit. 7, § 701. First, an inmate must file
a complaint with the Inmate Grievance Resolution Committee ("IGRC")
within 14 days of the alleged event. N.Y. Comp. Codes R. & Regs.
tit. 7, § 701.7(a)(1). The IGRC must then investigate and may resolve
the issue informally within seven days. Id. at § 701.7(a)(3). If
there is no informal resolution, a hearing is held, and the inmate may
appeal to the superintendent of the facility within four days of the
IGRC's action. Id. at §§ 701.7(a)(4), (b). Finally, after receiving a
response from the superintendent, the prisoner may appeal that decision
to the Central Office Review Committee ("CORC") within four days of its
receipt. Id. at § 701.7(c). The CORC, in turn, must render a decision
within 20 days. Id.
Defendants contend that Harris has failed to exhaust his administrative
remedies with respect to all of his claims. Indeed, in his complaint,
Harris concedes that he did not present his claims through the inmate
grievance procedure, even though he was aware of its existence. (Compl.
p.3)*fn3 However, in his complaint, Harris contends that he should be
excused from following the Inmate Grievance Procedure because he stated
his complaints in various letters to Superintendent Charles Griener ...