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March 31, 2003


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



Plaintiff, Clarence Evans ("plaintiff"), an inmate incarcerated at the Orleans Correctional Facility, brought this action pursuant to 42 U.S.C. § 1983 against Arnold Jonathan, Herbert Kuehn, and Lance Lewis,*fn1 three Orleans Correctional Officers ("defendants"). Plaintiff alleges that on October 22, 1998, defendants assaulted him in violation of his Eighth Amendment rights.

Defendants have moved for summary judgment on the ground that plaintiff 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 because his excessive force claim accrued in 1998, he was not required to exhaust his administrative remedies prior to bringing suit, and that the Court should not apply Nussle retroactively. Plaintiff also argues that he sufficiently exhausted his administrative remedies through formal and informal channels.

For the reasons that follow, I find that plaintiff has raised an issue of fact regarding whether he sufficiently exhausted his administrative remedies. Therefore, defendants' motion for summary judgment is denied.


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." 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, including claims of excessive force. 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. Therefore, prisoners must exhaust all available administrative remedies prior to bringing a § 1983 claim based on excessive force.

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).

There is also an alternative procedure available to an inmate who, like plaintiff, claims that he was harassed or assaulted by correctional officers. See 7 N.Y.C.R.R. § 701.11. The inmate "should first report such occurrences to the immediate supervisor of [those] employee[s]." 7 N.Y.C.R.R. § 701.11(b)(1). The inmate's complaint must be given a grievance number and recorded in sequence. 7 N.Y.C.R.R. § 701.11(b)(2). Thereafter, the Superintendent must determine whether, if true, the grievance would represent a bona fide case of harassment. 7 N.Y.C.R.R. § 701.11(b)(3).

If the Superintendent determines that the grievance does not represent a bona fide case of harassment, then the grievance is submitted to the IGRC for resolution in conformance with the usual IGP procedure found in Section 701.7, outlined above. Id. Irrespective of his finding, the Superintendent must respond to the grievance within twelve days of its receipt. 7 N.Y.C.R.R. § 701.11(b)(5). If the Superintendent fails to respond within the required time, plaintiff may appeal his grievance to the CORC by filing a notice of decision to appeal with the IGP clerk. 7 N.Y.C.R.R. § 701.11(b)(6).

Here, defendants argue that they are entitled to summary judgment because plaintiff did not file 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. #23. 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 an alleged assault on October 22, 1998 by Officers Jonathan, Lewis, or Kuehn. Id. at ¶ 5.

In response to defendants' motion, plaintiff argues that he sufficiently exhausted his claims.*fn2 Plaintiff submits evidence that shows that he may have exhausted his claims through the processes for harassment grievances found in 7 N.Y.C.R.R. § 701.11. In opposition to defendants' motion, plaintiff submitted a letter dated November 9, 1998 from George J. Bartlett, the Deputy Commissioner of the New York State Department of Corrections. In that letter, Bartlett responded to an October 22, 1998, letter plaintiff sent to Glenn S. Goord, Commissioner of the Department of Corrections, as follows:

Superintendent Johnson has conducted an investigation into your allegations of being assaulted by staff. Deputy Superintendent of Security Homringhouse reports that the investigation reveals you received a misbehavior report on October 22, 1998, for violent conduct and assault on staff. This was documented in the unusual incident report, as well as the use of force report. At your Tier III hearing held by Captain Gilbert, you received 120 days keeplock and three months loss of good time. You may appeal the Tier III decision to Donald Selsky, Director of Special Housing/Inmate Disciplinary Program within 30 days of your tier hearing disposition.
Your complaint was investigated and all pertinent documents were reviewed and the ...

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