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LIVINGSTON v. PISKOR

April 3, 2003

DETROY LIVINGSTON, PLAINTIFF,
v.
THOMAS J. PISKOR, ET AL., DEFENDANTS.



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

DECISION AND ORDER

INTRODUCTION

This is a pro se civil rights action brought by Detroy Livingston, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), pursuant to 42 U.S.C. § 1983. On September 30, 2002, this Court issued a Decision and Order granting defendants' motion for partial summary judgment, and dismissing all of plaintiff's claims except for his claims against defendants Piskor, Sette, Mackiewicz, Dunshie, Wendle, and Hoinski relating to the alleged assault on plaintiff on February 25, 1997. Livingston v. Goord, 225 F. Supp.2d 321 (W.D.N.Y. 2002).

The motion for partial summary judgment, which was filed in 1991, did not seek summary judgment on behalf of the abovementioned defendants. After the motion was filed, however, the Supreme Court handed down its decision in Porter v. Nussle, 534 U.S. 516 (2002), which changed the legal landscape in this circuit regarding the application of the exhaustion requirement of the Prison Litigation Reform Act of 1995 ("PLRA"), 42 U.S.C. § 1997e(a).

The PLRA provides 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 Nussle, the law in the Second Circuit was that this 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." 534 U.S. at 520.

The remaining defendants have now moved for leave to amend their answer to add the affirmative defense that plaintiff has failed to exhaust his administrative remedies, and move for summary judgment dismissing plaintiff's remaining claims for failure to exhaust.

DISCUSSION

I. Motion for Leave to Amend

Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend a pleading "shall be freely given when justice so requires." "Parties are generally allowed to amend their pleadings absent bad faith or prejudice." Commander Oil Corp. v. Barlo Equip. Corp., 215 F.3d 321, 333 (2d Cir.), cert. denied, 531 U.S. 979 (2000). "Thus, absent evidence of undue delay, bad faith or dilatory motive on the part of the movant, undue prejudice to the opposing party, or futility, Rule 15's mandate must be obeyed." Monahan v. New York City Dep't of Corrections, 214 F.3d 275, 283 (2d Cir.) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)), cert. denied, 531 U.S. 1035 (2000).

Here, I see no basis for finding the existence of any of these factors militating against granting leave to amend, and defendants' motion is therefore granted. Although defendants were presumably aware of the PLRA's exhaustion requirement at the time that they filed their answer in this action, it would have been futile for them to assert an exhaustion defense at that time, given the then-existing law in this circuit. It was not until the Supreme Court's decision in Nussle that defendants could have known that exhaustion was required under the circumstances presented here.

See Abney v. County of Nassau, 237 F. Supp.2d 278, 281 (E.D.N.Y. 2002) ("the affirmative defense was not available to be asserted in this case until 2002 and Defendants cannot therefore be faulted for failing to earlier raise the defense").

Although the motion now before me was filed about seven and a half months after Nussle was decided, and nine days after my September 30 decision, I also find no undue delay here.

It necessarily took some time for counsel to learn of, obtain a copy of, and read, Nussle; to determine which pending cases might be affected by that decision; to attempt to find out whether plaintiff had exhausted his administrative remedies; and to prepare and submit the motion papers in ...


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