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March 18, 2003


The opinion of the court was delivered by: Thomas J. McAVOY, District Judge


Plaintiff Mark Larry (Larry) brings this action pursuant to 42 U.S.C. § 1983 against various prison officials for what he alleges was retaliation for exercising his First Amendment right to file a grievance through the inmate litigation grievance procedure.

Presently before this Court is Defendants' motion to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(1) or 12(b)(6) because Plaintiff has failed to exhaust his administrative remedies. Plaintiff has also filed a motion for a preliminary injunction, ordering Defendant Girdich to stop harassing him. For the reasons that follow, Plaintiff's motion for a preliminary injunction is denied. Defendant's motion to dismiss the complaint is granted.

I. The Complaint

Plaintiff alleges that on April 4, 2001, he wrote a letter to Superintendent Girdich informing him that Plaintiff was being retaliated against for filing a grievance. See Larry Affirmation, Ex. "A."*fn1 The complaint was treated as a complaint of staff harassment, pursuant to Department of Corrections Directive 4040, Part VII.*fn2 It was assigned a grievance number and was investigated. See Larry Affirmation, Ex. "B." Apparently, Superintendent Girdich did not follow the procedure set out in Directive 4040, Part VII because he did not issue a written decision "within twelve (12) working days." Directive 404, Part VII(E). Plaintiff thereafter instituted this lawsuit. Plaintiff argues that he should be deemed to have exhausted administrative remedies because he followed other procedures or alternatively, because DOCS did not follow its own procedures.

In support of his application, Plaintiff has supplied the minutes of two Inmate Liaison Committee meetings in which inmates lodged complaints that their grievances were not being properly processed, and that the institution was not following Directive 4040. He also submits the affidavits of two other inmates whose grievances were lost or thrown away, and thus, never processed.

II. Discussion

A. Exhaustion

Under the Prisoner Litigation Reform Act, an inmate must exhaust all available administrative remedies prior to filing a complaint in federal court. See 42 U.S.C. § 1997e; Porter v. Nussle, 534 U.S. 516 (2002). An inmate's failure to exhaust administrative remedies is an affirmative defense which must be pleaded and proven by the defendants. Aronld v. Goetz, 2003 WL 256777, at *2 (S.D.N.Y. Feb. 4, 2003) (citing cases). Further, "[u]nder certain circumstances, a correctional institution's failure to provide an inmate with sufficient information about the available grievance procedures may excuse his failure to exhaust administrative remedies." Aronld, 2003 WL 256777, at *3 (citing Hall v. Sheahan, 2001 WL 111019, at *1 (N.D.Ill. Feb. 2, 2001)).

Additionally, where prison officials obstruct an inmate's use of a grievance procedure, such as where an inmate is denied required grievance forms, administrative remedies are deemed to be exhausted. See id. (citing cases); see also Gadson v. Goord, 2002 WL 982393, at * (N.D.N.Y. May 10, 2002).

In the instant case, Defendants have provided DOCS directive 4040, which sets out the inmate grievance procedures. DOCS, through Director of Inmate Grievances, Thomas Eagen, alleges that DOCS directive 4040 is provided to all inmates upon their admission to DOCS. Indeed, Plaintiff refers to Directive 4040 himself and does not claim that he had no opportunity to review the grievance procedure.

As noted, since Plaintiff was complaining of harassment by staff, he was justified in following the procedures set out at Part VII of the directive, which relates to complaints about staff harassment. This portion of the Directive required the Superintendent to issue a written decision within twelve days of receipt of the grievance. DOCS has not claimed this was done, and Plaintiff has affirmatively denied that Superintendent Girdich complied with the requirement. The Court finds, however, that Plaintiff is still not excused from exhausting his administrative remedies. Directive 4040, Part VII(F) states: "[i]f the Superintendent fails to respond within the required twelve (12) day time limit the grievant may appeal his grievance to CORC. This is done by filing a Notice of Decision to Appeal-Form 2133 with the Inmate Grievance Clerk."

Plaintiff does not allege that he was unaware of Directive 4040, nor does he allege that he could not obtain Form 2133 from prison officials. Rather, he alleges that he tried to resolve the matter through other means. Such alternative means, however, do not satisfy the exhaustion requirement. See Nelson v. Rodas, 2002 WL 31075804, *3 (S.D.N.Y. Sept. 17, 2002) (alternative action does not exhaust administrative remedies). Consequently, Plaintiff's Complaint must be dismissed without prejudice.*fn3 See Morales v. Mackalm, 278 F.3d 126, 131 ...

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