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March 26, 2003


The opinion of the court was delivered by: Laura Taylor Swain, District Judge


In this action, Plaintiff, appearing pro se, seeks compensation under 42 U.S.C. § 1983 for injuries allegedly suffered by Plaintiff from exposure to environmental tobacco smoke ("ETS") while he was housed at the Otis Bantum Correctional Center at Rikers Island ("OBCC"). Defendants moves the Court pursuant to Rule 12(b) or, alternatively, Rule 56, of the Federal Rules of Civil Procedure, for an order dismissing the Complaint. For the following reasons, Defendants' motion is granted, and the Complaint is dismissed.

The Complaint in this action was filed August 23, 2001. The instant motion was first filed on behalf of Defendant Leroy Grant on March 18, 2002. By Memorandum Order dated August 30, 2002, the Court deemed amended all motion papers as also having been filed on behalf of and adopted by Defendant Mack Short. Plaintiff never responded to the motion. By Memorandum Order dated November 27, 2002, the Court deemed the instant motion fully submitted.

Plaintiff alleges that, upon his arrival at OBCC, he requested placement in nonsmoking housing. (Compl., section IV.) He was informed that OBCC had no such housing, and approached two corrections officers about the situation. They told him to grieve his problem, but that there was no nonsmoking housing. Id. Plaintiff alleges that he "filed an institutional grievance complaint form" in connection with the facts of the Complaint. Id., section II. Exposure to ETS allegedly has caused Plaintiff to suffer breathing problems "as well as constant eye tearing." Id., section IV-A.

Attached to Defendants' Notice of Motion is the Declaration of Arthur Harris ("Harris Decl."), the Director of the Inmate Grievance Resolution Program of the New York City Department of Correction. At Harris' direction, a review of the Rikers Island inmate grievance records was conducted for the period of November 1, 2000 to on or about January 22, 2002. During that period, Flowers filed only one grievance, and it related to mail delivery. (Harris Decl. ¶ 3.)

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. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Where the defendant challenges the factual basis of jurisdiction, a district court may refer to evidence outside the pleadings. See id.; Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986) ("when . . . subject matter jurisdiction is challenged under Rule 12(b)(1), evidentiary matter may be presented by affidavit or otherwise").

When considering a Rule 12(b)(1) motion, the Court does not draw inferences in plaintiff's favor. See Goodman v. Children's Television Workshop, 1999 WL 228396, at *1. A plaintiff asserting subject matter jurisdiction, once challenged, has the burden of proving by a preponderance of the evidence that jurisdiction exists. See id.; Makarova, 201 F.3d at 113.

The Prison Litigation Reform Act of 1995 (the "PLRA") provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any Federal law, by a prisoner confined in any jail, prison, or correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C.A. § 1997e(a) (West 1994 & Supp. 2002). In Nussle v. Porter, 122 S.Ct. 983 (2002), the Supreme Court held that "[section] 1997e(a)'s exhaustion requirement applies to all prisoners seeking redress for prison circumstances or occurrences." 122 S.Ct. at 986. "All `available remedies must now be exhausted; those remedies need not meet federal standards, nor must they be `plain, speedy, and effective.' Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit." Id. at 988 (citing Booth v. Churner, 532 U.S. 731, 739-41 (2001)). The Second Circuit has held that prisoner complaints about medical treatment concern prison circumstances and, therefore, are subject to the exhaustion requirement. See Neal v. Goord, 267 F.3d 116, 119-20 (2001) (prisoner's section 1983 claim for medical indifference barred for failure to exhaust administrative remedies); Martinez v. Williams, 186 F. Supp.2d 353, 357 (S.D.N.Y. 2002) (prisoner's section 1983 claim alleging deliberate indifference to medical needs barred under section 1997e(a) for failure to exhaust administrative remedies).

Plaintiff failed to exhaust his administrative remedies with respect to his ETS claim. As described above, inmate grievance records at Rikers Island do not indicate any grievances filed by Plaintiff regarding ETS. Furthermore, even if Plaintiff has filed an "institutional grievance form" relating to his ETS claim, Plaintiff has not alleged that he followed any of the Department of Correction procedures for appellate review of his grievance. Plaintiff has failed to put forward any evidence indicating that he fully exhausted his administrative remedies. Accordingly, the Court must conclude that it lacks subject matter jurisdiction of this action and dismiss the Complaint.


For the foregoing reasons, Defendants' motion is granted, and the Complaint is dismissed, without prejudice to the commencement of another lawsuit following the exhaustion of administrative remedies.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962).


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