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January 31, 2003


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 ...

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