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ADAMS v. SPITZER

United States District Court, Southern District of New York


April 9, 2003

SANDERS LAMONT ADAMS, PLAINTIFF,
v.
ELIOT SPITZER, ATTORNEY GENERAL OF THE STATE OF NEW YORK; GLENN S. GOORD, COMMISSIONER OF NEW YORK STATE DEPARTMENT OF CORRECTIVE SERVICES; BRIAN D. TRAVIS, CHAIRMAN, CHAIRMAN OF NEW YORK STATE DIVISION OF PAROLE; INSPECTOR GENERAL, NEW YORK STATE DEPARTMENT CORRECTIONAL SERVICES; CLASSIFICATION AND MOVEMENT, NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES; DONALD SELSKY, DIRECTOR OF SPECIAL HOUSING UNIT; THOMAS G. EGAN, DIRECTOR, DIRECTOR OF CENTRAL OFFICE REVIEW COMMITTEE; CHARLES GREINER, SUPERINTENDENT OF GREENHAVEN CORRECTIONAL FACILITY; GEORGE B. DUNCAN, SUPERINTENDENT GREEN MEADOW CORRECTIONAL FACILITY, DEFENDANTS.

The opinion of the court was delivered by: Denise Cote, United States District Judge

MEMORANDUM OPINION AND ORDER

On May 15, 2002, the Pro Se Office of this district received a complaint from Sanders Lamont Adams ("Adams") alleging principally three violations of his constitutional rights and seeking damages, an injunction, and related relief. Adams asserts that while an inmate at Greenhaven Correctional Facility he was deprived of his personal property from November 5 to November 19, 2001, and thereby prevented from filing an affidavit to show cause why a lawsuit he had filed in 1999 in the Northern District of New York should not be dismissed. He asserts both that a requirement that he participate in "AA or NA" to earn parole violates his rights to practice his Muslim religion and that a transfer to Great Meadow Correctional Facility in November 2001, interfered with his ability to participate in those programs. Finally, he asserts that five years of good time credit were revoked on or about January 17, 2001, in retaliation for lawsuits he had filed against the Department of Correctional Services ("DOCS"), parole officials and New York City defendants. The defendants have moved to dismiss for the plaintiff's failure to exhaust his administrative remedies and for hi's failure to allege sufficiently that the individual defendants were personally involved in any actionable conduct. The complaint is dismissed for failure to exhaust.

In their memorandum of November 8, 2002, the defendants discuss at length the law of exhaustion, explaining among other things, that there is no record that Adams filed grievances for these claims, although he had previously grieved other matters, that there is no exception to the grievance requirement based on futility, Booth v. Churner, 532 U.S. 731, 741 (2001), that DOCS' procedures allow an inmate to pursue a grievance even after a transfer, and that a letter to the Superintendent is not a substitute for grievance procedures. Adams' response, received on February 24, 2003, does not address the failure to exhaust.

In a document dated March 26 and received on March 28, Adams requests permission to supplement his response to the motion. The March 26 submission recites in some detail the litigation Adams has filed and is pursuing in state and federal courts. Adams does not address the failure to exhaust the claims raised in this lawsuit, but does ask that a certificate of appealability be issued on the grounds that he has already briefed in connection with habeas petitions he has filed. A certificate of appealability is necessary to appeal from a denial of a petition for a writ of habeas corpus. See 28 U.S.C. § 2253 (2002) It does not apply to a Section 1983 action like that filed here. 42 U.S.C. § 1983 (2002).

Given that it is undisputed that Adams did not exhaust his administrative remedies, the motion to dismiss is granted.

Conclusion

The defendants' motion to dismiss for failure to exhaust administrative remedies is granted. The Clerk of Court shall close the case.

SO ORDERED

20030409

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