The opinion of the court was delivered by: John T. Elfvin, Senior District Judge.
Plaintiff ("Roa") commenced this action April 20, 2000 against defendant ("Nichols") asserting claims pursuant to the Civil Rights Act of 1994, 42 U.S.C. § 1983.*fn2 Nichols now seeks summary judgment in his favor. For the reasons set forth below, Nichols' motion for summary judgment will be granted and the Complaint as against him will be dismissed without prejudice.
The relevant facts are straightforward. Roa was incarcerated at the Elmira Correctional Facility ("ECF") from October 4, 1997 through February 4, 1998 and from April 14, 1998 through October 7, 1998. On December 19, 1998 Roa became ill. Roa was sent to the prison infirmary where he was allegedly denied the opportunity to see a physician. See Am. Comp., at ¶ 22. Roa was returned to his cell where he was allegedly denied medical care for two days. See id. at ¶¶ 23-29. On December 23, 1989 Roa was taken to the emergency room at the Arnot Ogden Medical Center where he was admitted and treated for approximately one week. See id. at ¶ 31. On January 3, 1998 Roa was transferred to SUNY Upstate Medical Center where he remained until February 3, 1998 when he was transferred to the Walsh Medical Center. See Decl. in Opposition, at ¶¶ 13, 15. Roa was returned to ECF April 28, 1998. See id. at ¶ 18.
Rule 56(c) of the Federal Rules of Civil Procedure ("FRCvP") states that summary judgment may be granted only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In other words, after discovery and upon a motion, summary judgment shall be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is thus appropriate where there is "no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).*fn3
With respect to the first prong of Anderson, a genuine issue of material fact exists if the evidence in the record "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, at 248.*fn4 Stated another way, there is "no genuine issue as to any material fact" where there is a "complete failure of proof concerning an essential element of the nonmoving party's case." Celotex, at 323. Under the second prong of Anderson, the disputed fact must be material, which is to say that it "might affect the outcome of the suit under the governing law ***." Anderson, at 248.
Furthermore, "[i]n assessing the record to determine whether there is a genuine issue as to any material fact, the district court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000) (citing Anderson, at 255). Nonetheless, mere conclusions, conjecture, unsubstantiated allegations or surmise on the part of the non-moving party are insufficient to defeat a well-grounded motion for summary judgment. See Goenaga, at 18.*fn5
Under the Prison Litigation Reform Act (the "PLRA"), 42 U.S.C. § 1997e(a), "[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 are exhausted." 42 U.S.C. § 1997e(a). In New York State, those remedies consist of a three-step review process. First, "[a]n inmate must submit a complaint to the Grievance Clerk within fourteen (14) calendar days of an alleged occurrence ***. Exceptions to this time limit may be approved by the Inmate Grievance Program supervisor based on mitigating circumstances ***." 7 N.Y.C.R.R. § 701.7(a)(1). Second, the grievance is submitted to the inmate grievance resolution committee ("IGRC") for investigation and review. 7 N.Y.C.R.R. § 701.7(b). Third, the inmate may appeal the IGRC's decision to the superintendent of the facility; the superintendent's decision may be appealed to the Central Office Review Committee, which makes the final administrative determination. 7 N.Y.C.R.R. § 701.7(c). A prisoner may seek relief in a federal court pursuant to 42 U.S.C. § 1983 only after such administrative review has been exhausted. See Neal v. Goord, 267 F.3d 116, 121-123 (2d Cir. 2001) (stating that exhaustion of administrative remedies is required before an inmate may sue in federal court).*fn6
Roa claims that he suffered injury as the result of allegedly inadequate medical care and nursing care rendered by Nichols in violation of the Eighth Amendment. Prior to the Supreme Court's decision in Porter v. Nussle, 534 U.S. 516 (2002), the Second Circuit had held that the PLRA's exhaustion requirements did not apply to claims involving isolated incidents affecting particular inmates, such as a claim of brutality — as opposed to claims concerning general prison circumstances or conditions, such as a claim regarding the quality of the food served. See generally Nussle v. Willette, 224 F.3d 95 (2d Cir. 2000), rev'd sub nom. Porter v. Nussle, 534 U.S. 516 (2002). However, in Porter v. Nussle, the Supreme Court held that "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes." Id. at 532 (emphasis added).*fn7 Accordingly, under Nussle, Roa must have exhausted his administrative remedies before commencing suit; he failed to do so.
Upon careful review of the pleadings in this action, it appears that, on or about March 20, 1998 — approximately three months after the alleged incident occurred ___, Roa sent correspondence to Supervising Superintendent Edward F. Reynolds regarding his complaints about the staff at ECF. See Decl. in Opposition, at Ex. C. When this letter was sent, Roa was receiving care at the Walsh Medical Center and had not yet been returned to ECF. After his return to ECF, Roa sent a complaint letter on April 21, 1998 to the Office of the First Deputy Superintendent. See Decl. in Opposition, at Ex. 1. That office responded by way of a memorandum dated April 28, 1998 indicating that the complaint was being investigated. See Decl. in Opposition, at Ex. E. It is undisputed that each of these letters by plaintiff was untimely because it had not been sent within 14 calendar days of the alleged occurrence as required by 7 N.Y.C.R.R. § 701.7(a)(1).
Roa's Declaration in Opposition implicitly concedes that administrative remedies had not been exhausted prior to the commencement of this action. See Decl. in Opposition, at ¶ 6 (stating "[d]ue to the retroactive effect of the Porter *** ruling *** I have been unable to find any legitimate basis to oppose the relief requested."). Indeed, although Roa brought his section 1983 action prior to the Supreme Court's announcement of its decision in Nussle, "`the broad exhaustion requirement announced in [Nussle] applies with full force' to a litigant *** who brought suit prior to the date of its decision." See Arnold v. Goetz, 2003 WL 256777, at *5 n. 2 (S.D.N.Y. 2003) (quoting Mack v. Artuz, 2002 WL 31845087, at *3 n. 2 (S.D.N.Y. 2002).*fn8 Nonetheless, Roa contends that his extensive period of hospitalization prevented him from complying with the applicable grievance procedures in a timely manner. The applicable regulations, however, provide for consideration of belated grievances or appeals due to "mitigating circumstances." See 7 N.Y.C.R.R. §§ 701.7(a)(1), 701.8. Despite Roa's hospitalization, there is no indication in the record that Roa sought permission to file a late grievance once he had returned to ECF.*fn9
Furthermore, there is no indication that Roa took additional steps to seek administrative review after failing to receive a further response to his letters. Indeed, even assuming arguendo that Roa's letters constituted the filing of a grievance, such nonetheless failed to satisfy the PLRA's exhaustion requirements — even if they had been made in a timely manner. See Reyes v. Punzal, 206 F. Supp.2d 431, 432-433 (W.D.N.Y. 2002) (holding that plaintiff, who filed a grievance but took no further action after not receiving a response, failed to exhaust administrative remedies). Nothing in the record reveals that Roa did anything in response to ECF's failure to reply to his complaints. The New York State Codes, Rules & Regulations specifically provide that if a response to a grievance is not forthcoming, there are further administrative avenues open to an inmate. See 7 N.Y.C.R.R. § 701.8 (stating "matters not decided within the time limits may be appealed to the next step"). For example, under the time limits set for review of and response to inmate grievances, an inmate may appeal to the next highest reviewing body when a response to a grievance is not forthcoming. See 7 N.Y.C.R.R. §§ 701.7(a)(1), (a)(4), (a)(4)(v), 701.8; see also Kearsey v. Williams, 2002 WL 1268014, at *2-3 (S.D.N.Y. 2002) (inmate required to pursue full appeal process even where it was alleged that prison officials had not investigated complaint).*fn10
This Court will dismiss the Complaint without prejudice to afford Roa an opportunity to exhaust his administrative remedies. See Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir. 2002) (the appropriate disposition is to dismiss the complaint without prejudice to refiling once the plaintiff has exhausted all currently available procedures under the state prison grievance system).
Accordingly, it is hereby ORDERED that defendant's motion for summary judgment is granted and that the Complaint is dismissed without prejudice as against defendant Nichols.
*fn2 On January 17, 2001 an Amended Complaint, containing conflicting dates and signed by Roa pro se, was filed with the United States District Court for the Northern District of New York. The Northern District construed the Amended Complaint as an unrelated complaint, and assigned it Index Number 00-CV-1830. On October 18, 2000 and February 15, 2001 the Northern District transferred the aforementioned actions to this Court. On February 7, 2002 ...