However, Harris has still not exhausted his administrative remedies
pursuant to the PLRA since there has been no final disposition of his
grievance at the administrative level. Moreover, the PLRA has been
interpreted by courts to require an inmate to exhaust administrative
remedies prior to commencing the federal action. See Neal v. Goord,
267 F.3d 116, 122 (2d Cir. 2001) ("[A]llowing prisoner suits to proceed,
so long as the inmate eventually fulfills the exhaustion requirement,
undermines Congress' directive to pursue administrative remedies prior to
filing a complaint in federal court. . . . Subsequent exhaustion after
suit is filed therefore is insufficient"); Saunders v. Goord, No. 98
Civ. 8501, 2002 WL 1751341 (S.D.N.Y. July, 29, 2002) ("A plaintiff must
. . . meet the PLRA's exhaustion requirements at the time a complaint is
filed, and cannot cure a failure of exhaustion by pursuing administrative
remedies while a federal action is pending."); see also Medina-Claudio
v. Rodriguez-Mateo, 292 F.3d 31, 36 (1st Cir. 2002) ("[The PLRA] clearly
contemplates exhaustion prior to the commencement of the action as an
indispensable requirement. Exhaustion subsequent to the filing of suit
will not suffice"). The failure to exhaust administrative remedies is
usually a "curable, procedural flaw" that can be corrected by an inmate's
exhausting his remedies and then reinstating the suit. Snider v.
Melindez, 199 F.3d 108, 111-12 (2d Cir. 1999).
Finally, even when this Court reads plaintiffs submissions liberally
and in the most generous light, Harris has put forth no additional
arguments or evidence that excuse his failure to exhaust the IGP's
administrative remedies. Although several courts have determined that an
inmate may defeat a motion to dismiss his complaint even when all
administrative remedies have not technically been exhausted, the
circumstances in this action do not warrant such a determination because
there is no allegation or evidence that prison officials in any way
hindered Harris' effort to file a grievance pursuant to the IGP. Although
Harris submits that "a prison inmate cannot always safely litigate a
grievance or complaint against assaultive staff" ("Motion Application,"
p.2), he does not allege that he himself was ever precluded from pursuing
his grievance through the proper administrative channels. Indeed, the
fact that Harris never even attempted to follow the IGP procedures
initially, combined with the fact that he now appears to be doing so
readily, eviscerate any such claim. Cf. Feliciano v. Goord, No. 97 Civ.
263, 1998 WL 436358, at *2 (S.D.N.Y. July 27, 1998) (defendants' motion
to dismiss the complaint denied where inmate made "reasonable attempt" to
exhaust his administrative remedies and where it was alleged that
corrections officers failed to file the inmate's grievances or otherwise
impeded or prevented his efforts); Rodriguez v. Hahn, No. 99 Civ. 11663,
2000 WL 1738424, at *2 (S.D.N.Y. Nov. 22, 2000) (same); Miller v.
Norris, 247 F.3d 736, 740 (8th Cir. 2001) (a "remedy" is not "available"
pursuant to the PLRA where prison officials prevented a prisoner from
Because Harris has failed to exhaust his administrative remedies
pursuant to the PLRA, defendants' motion to dismiss the complaint is
granted and it is dismissed without prejudice to Harris' refiling it once
he exhausts his administrative remedies. See Morales v. Mackalm,
278 F.3d 126 (2d Cir. 2002) (dismissal pursuant to PLRA for failure to
exhaust administrative remedies should be without prejudice).