The opinion of the court was delivered by: Lawrence E. Kahn, United States District Judge
This matter comes before the Court following a Report-Recommendation filed on March 3, 2003, by the Honorable David E. Peebles, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and L.R. 72.3 of the Northern District of New York. After ten days from the service thereof, the Clerk has sent the entire file to the undersigned, including the objections by Defendants, which were filed on March 10, 2003. It is the duty of this Court to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b). "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." Id. This Court has considered the objections and has undertaken a de novo review of the record and has determined that Defendants' motion for summary judgment should be granted.
Plaintiff Gordy Richardson ("Richardson"), formerly an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brought this action pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his civil rights while he was incarcerated at Great Meadow Correctional Facility ("GMCF"). Richardson claims that Defendants, corrections officers as GMCF, assaulted him in retaliation for filing grievances against them and other corrections officers. Following the announcement of the United States Supreme Court's decision in Porter v. Nussle, 534 U.S. 516 (2002), Defendants moved for summary judgment on the grounds that Richardson failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act (PLRA). See 42 U.S.C. § 1997e(a). Richardson has not responded to this motion.
42 U.S.C. § 1997e(a) states: "No 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). Richardson's complaint clearly concerns prison conditions. See Porter, 534 U.S. at 532 ("[W]e hold that the PLRA's exhaustion requirement applies to all inmate suits about prison life. . . ."). Richardson admits that he brought the instant action before exhausting the administrative remedies that were available to him as an inmate at GMCF. Complaint ¶ 4b.
Accordingly, under the plain terms of 42 U.S.C. § 1997e(a), it appears that Richardson's complaint must be dismissed for failure to exhaust his administrative remedies. However, there is some dispute as to whether the exhaustion requirement should be applied following a plaintiff's release from prison. Compare Ahmed v. Dragovich, 297 F.3d 201, 210 (3d Cir. 2002) (holding that the PLRA's exhaustion requirement applies to suits that are filed while the plaintiff is incarcerated but which are not decided until after the plaintiff is released from prison) with Morris v. Eversley, 205 F. Supp.2d 234, 241 (S.D.N.Y. 2002) (declining to dismiss the plaintiff's complaint for failure to exhaust because, inter alia, the plaintiff was released from prison after she filed the complaint).
The Magistrate Judge correctly noted that dismissal of a complaint for failure to exhaust must be without prejudice and Richardson may therefore re-file the complaint.*fn1 See Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir. 2002). The Magistrate Judge also correctly stated that the exhaustion requirement does not apply to any complaints filed by Richardson since his release. See Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999). However, the Court disagrees with the Magistrate Judge's determination that Richardson's complaint should not be dismissed because dismissal would not further the policy considerations underlying the PLRA. In particular, the Magistrate Judge found that the PLRA's goal of eliminating the filing of complaints raising claims which can be resolved through internal processes is not implicated because Richardson may not avail himself of the administrative remedies available to prisoners. In addition, the Magistrate Judge stated that dismissal of Richardson's claim "would be a needless exercise." Report-Recommendation at 14.
Dismissing Richardson's complaint in accordance with the express terms of the PLRA may appear inefficient. However, the Second Circuit has held that a prisoner's complaint asserting unexhausted claims must be dismissed for failure to exhaust, even when the plaintiff is not required to attempt to resolve his claim through the prison's internal procedures following dismissal. See Neal v. Goord, 267 F.3d 116, 123 (2d Cir. 2001). In Neal, the Second Circuit held that a court must dismiss a prisoner's action regarding prison conditions for failure to exhaust even if the prisoner exhausts his administrative remedies during the pendency of the action. Id. at 122. While noting that its holding might lead to inefficiencies "in an individual case," the Court determined that allowing inmates to exhaust after commencing an action "undermines Congress' directive to pursue administrative remedies prior to filing a complaint in federal court." Id. at 123.
The Court reaches a similar result here. The PLRA's exhaustion requirement would be undermined if the Court allowed unexhausted claims asserted by a prisoner concerning prison conditions to proceed in federal court because the prisoner has been released during the pendency of the action. The plain terms of the PLRA do not allow for this exception.
Accordingly, it is hereby
ORDERED, that Defendants' motion for summary judgment is GRANTED and Plaintiff's complaint is DISMISSED without prejudice; and it is further
ORDERED, that the Clerk serve a copy of this order on all ...