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March 27, 2003


The opinion of the court was delivered by: David G. Larimer, United States District Judge



Plaintiff, Mark LaBounty ("plaintiff"), an inmate incarcerated at the Collins Correctional Facility, brought this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights at Orleans and Collins Correctional Facilities ("Orleans" and "Collins"). For his first claim, plaintiff asserts that Orleans personnel failed to take steps to protect him from other inmates after correctional officers identified him as a gang member, in violation of his Eighth and Fourteenth Amendment rights. In his second claim, plaintiff alleges that certain correctional officers at Collins retaliated against him by identifying him as a gang member after he successfully pursued a grievance against the officers, in violation of his First Amendment rights.

Defendants move for summary judgment on the ground that plaintiff has failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act of 1995 ("PLRA"), 42 U.S.C. § 1997e(a), and the Supreme Court's decision in Porter v. Nussle, 534 U.S. 516 (2002). Plaintiff argues that he sufficiently exhausted his administrative remedies, or was prevented from doing so by the correctional facility staff. Plaintiff also argues that Nussle should not be applied retroactively.

For the reasons that follow, defendants' motion for summary judgment is granted as to the first claim because I find that plaintiff has failed to exhaust his administrative remedies. However, defendants' motion is denied as to the second claim because issues of fact exist regarding whether the defendants' conduct precluded plaintiff from exhausting his remedies.


Summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In deciding a motion for summary judgment, the court "must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor." Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir. 2000) (quotations omitted). Where, as here, the plaintiff is proceeding pro se, the court must "read the pleadings . . . liberally and interpret them to raise the strongest arguments that they suggest." Corcoran v. New York Power Auth., 202 F.3d 530, 536 (2d Cir. 1999) (quotations omitted). "Nonetheless, `[p]roceeding pro se does not otherwise relieve a litigant of the usual requirements of summary judgment, and a pro se party's bald assertions, unsupported by evidence, are insufficient to overcome a motion for summary judgment.'" Rodriguez v. Ames, 224 F. Supp.2d 555, 559 (W.D.N.Y. 2002), quoting Rodriguez v. Hahn, 209 F. Supp.2d 344, 348 (S.D.N.Y. 2002).

The PRLA provides at 42 U.S.C. § 1997e(a) 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." In New York State, those remedies consist of a three-step review process. First, "an inmate must submit a complaint to the Grievance Clerk within 14 calendar days of an alleged occurrence. . . ." 7 N.Y.C.R.R. § 701.7(a)(1). The grievance is then submitted to the inmate grievance resolution committee ("IGRC") for investigation and review. The IGRC's decision can be appealed to the superintendent of the facility, and the superintendent's decision can be appealed to the Central Office Review Committee ("CORC"), which makes the final administrative determination. See 7 N.Y.C.R.R. § 701.7. At each step, there are time limits within which the grievance or appeal must be decided, and "matters not decided within the time limits [prescribed by the regulations] may be appealed to the next step." 7 N.Y.C.R.R. § 701.8. Only upon exhaustion of these three levels of review may a prisoner seek relief pursuant to 42 U.S.C. § 1983 in federal court. Santos v. Hauck, 242 F. Supp.2d 257 (W.D.N.Y. 2003).

Prior to the Supreme Court's decision in Porter v. Nussle, the law in the Second Circuit was that the PLRA's exhaustion requirement did not apply to claims pertaining to isolated incidents affecting particular inmates. See Nussle v. Willette, 224 F.3d 95 (2d Cir. 2000). In Nussle, however, the Supreme Court held that "§ 1997e(a)'s exhaustion requirement applies to all prisoners seeking redress for prison circumstances or occurrences." Nussle, 534 U.S. at 520. The rule in Nussle extends to claims for retaliation by correction officers. Lawrence v. Goord, 304 F.3d 198, 199-200 (2d Cir. 2002) ("retaliation claim fits within the category of `inmate suits about prison life,' and therefore must be preceded by the exhaustion of state administrative remedies").

Defendants argue that they are entitled to summary judgment because plaintiff did not satisfy the third level of the exhaustion requirement that requires filing an appeal with the CORC. In support of their motion, defendants submitted the affidavit of Thomas G. Eagen, the Director of the Inmate Grievance Program for the Department of Correctional Services. Dkt. #56. Eagen supervises the maintenance of grievance records and conducted a search of the CORC appeal records. He found no "record or indication" that plaintiff filed any appeals from the denial of any grievances concerning his identification as a gang member by the staff at Orleans or Collins. Nor did Eagan find an appeal from the denial of the grievance related to the failure of Johnson and Gilbert to protect him at Orleans. Id. at ¶¶ 6-7.

Plaintiff makes numerous arguments in opposition to defendants' motion. First, plaintiff argues that defendants waived their right to raise the exhaustion issue at this stage of the case. However, "[s]tatutory exhaustion requirements are mandatory, and courts are not free to dispense with them." Hemphill v. New York, 198 F. Supp.2d 546, 549 (S.D.N.Y. 2002); see also Bastek v. Fed. Crop Ins. Corp., 145 F.3d 90, 94 (2d Cir. 1998). Because Congress specifically mandated that all prisoners exhaust their administrative remedies prior to bringing suit, Nussle, 534 U.S. at 524, this Court lacks the authority to waive that requirement. Hemphill, 198 F. Supp.2d at 549. In any event, it appears that defendants moved for summary judgment on the exhaustion issue solely on the basis of the Supreme Court's decision in Nussle. Defendants filed their motion within four months of the decision. Therefore, even if the Court could waive the exhaustion requirements, there is nothing in the record to indicate that defendants delayed filing the motion or engaged in litigation tactics to warrant that equitable remedy.

Plaintiff also contends that the Court should not apply Nussle retroactively because his action was filed before the Supreme Court's decision. Plaintiff argues he was entitled to rely on the law as it existed in the Second Circuit at the time his claim accrued. However, courts in this Circuit have repeatedly rejected this argument and held that claims filed prior to the Court's decision in Nussle must meet the exhaustion requirements. See Santos v. Hauck, 242 F. Supp.2d 257 (W.D.N.Y. 2003) (collecting cases); Khalild v. Reda, No. 00 Civ. 7691, 2003 WL 42145 (S.D.N.Y. Jan. 23, 2003); White v. New York, No. 00 Civ. 3434, 2002 WL 31235713, *2 (S.D.N.Y. Oct. 3, 2002) ("Courts in this Circuit have consistently applied [Nussle] retroactively"); Hemphill, 198 F. Supp.2d at 550. For the same reasons articulated in Hemphill, I find nothing peculiar about plaintiff's claims or the circumstances here that requires departure from the rule requiring the retroactive application of Nussle. See Hemphill, 198 F. Supp.2d at 550.

Having found no equitable reason to deny defendants' motion, the Court must examine the steps plaintiff took to exhaust his claims and determine whether they meet the ...

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