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July 23, 2003


The opinion of the court was delivered by: Robert Sweet, Senior District Judge


The defendant Doctor Felicitas Miraflor has moved under Fed.R.Civ.P. 12(b)(1) and 12(b)(6), to dismiss the complaint of pro se plaintiff Richard Cole ("Cole"), on the grounds that plaintiff has failed to exhaust his administrative remedies, and that plaintiff's claim is barred by the statute of limitations. For the reasons set forth below, the motion to dismiss is granted.


Cole brings this action pursuant to 42 U.S.C. § 1983, seeking compensatory damages and alleging the deliberate indifference to plaintiff's medical needs by the defendant. The relevant facts and parties are discussed in greater detail in Cole v. Miraflor, 195 F. Supp.2d 496 (S.D.N.Y. 2002), familiarity with which is presumed. In Cole, the Court dismissed plaintiff's previous complaint on summary judgment for failure to exhaust administrative remedies. Plaintiff admitted that he had not filed any internal grievance following his medical visits to the defendant in 1995 and 1996 "despite familiarity with the availability of such remedy." Cole, 195 F. Supp.2d at 499. Following that dismissal, plaintiff submitted an Inmate Grievance Complaint to the State of New York Department of Correctional Services ("DOCS") on April 18, 2002. The complaint was returned by the Inmate Grievance Review Committee ("IGRC") as untimely on April 25, 2002. Plaintiff appealed the decision of the IGRC to the Superintendent of Wende Correctional Facility, where he is currently incarcerated, and later to DOCS' Central Office Review Committee ("CORC"). Both the Superintendent and CORC affirmed the IGRC's decision. The First Deputy Superintendent stated that Cole had "not provided any mitigating circumstances which warrant the filing of a grievance seven years after the incident." May 6, 2002 Memorandum to R. Cole from David M. Unger, First Deputy Superintendent, Wende Correctional Facility. Cole acknowledges that his grievance was denied as untimely. On December 18, 2002, Cole filed the present complaint.

Standard of Review

In addressing the present motion, the Court is mindful that the plaintiff is proceeding pro se and that his submissions should be held "`to less stringent standards than formal pleadings drafted by lawyers. . . .'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595 (1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). Nevertheless, pro se status "`does not exempt a party from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quotations omitted).

Because the failure by a plaintiff to exhaust administrative remedies deprives a court of jurisdiction, the defendant's motion on that issue should be addressed under Fed.R.Civ.P. 12(b)(1). See Sulton v. Wriqht, ___ F. Supp.2d ___, 2003 WL 21251652, at *4 (S.D.N.Y. June 6, 2003) (citing Benitez v. Straley, 01 Civ. 0101, 2002 WL 31093608, at *2 (S.D.N.Y. Sept. 18, 2002) (collecting cases)). When the defendant's challenge is to subject matter jurisdiction, the Court may consider matters outside the complaint. Phifer v. City of New York, 289 F.3d 49, 55 (2d Cir. 2002) (citing United States v. Vasquez, 145 F.3d 74, 80 (2d Cir. 1998). A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that the court has jurisdiction. Id. (citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)).

Where, as in the present case, the defendant moves under Rule 12(b)(1) as well as on other grounds, "the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined." United States ex rel. Kreindler & Kreindler v. United Technologies Corp., 985 F.2d 1148, 1155-56 (2d Cir. 1993) (quoting Wright & Miller, Federal Practice and Procedure, § 1350, p. 548 (1969)).

Plaintiff Has Failed to Exhaust His Administrative Remedies

The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) ("PLRA"), states that:

No action shall be brought with respect to prison conditions under section 1983 . . . or any other federal law . . . by a prisoner . . . until such administrative remedies as are available are exhausted.
Complaints filed under § 1983 are to be dismissed if prisoners have failed to exhaust administrative remedies. Booth v. Churner, 532 U.S. 731, 742 (2001); Alexandroai v. California Dep't of Corrections, 985 F. Supp. 968, 970 (S.D. Cal. 1997) (plaintiff must "work within the prison system to have his case heard and then come to the Court after he has exhausted his administrative remedies as required by federal law"). The Supreme Court has held that "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). The Second Circuit has also held specifically that claims of inadequate medical treatment relate to prison conditions. Neal v. Goord, 267 F.3d 116, 119-21 (2d Cir. 2001).

The exhaustion requirement applies to cases filed on or after the April 26, 1996 effective date of the PLRA, even if the claims on which the complaints are based accrued prior to the effective date. Cuoco v. U.S. Bureau of Prisons, 2000 WL 347155, at *2 (S.D.N.Y. March 2000) (citing White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997)). Plaintiff filed his complaint in this case on December 18, 2002. It therefore is covered by the PLRA's exhaustion requirement.

Plaintiff argues that his filing of an Inmate Grievance Complaint in April 2002, and his subsequent appeal of the denial of that complaint constitutes exhaustion of his administrative remedies. However, several courts in this District have held that failure to file a timely grievance constitutes failure to exhaust administrative remedies as required by the PLRA. See Patterson v. Goord, 02 Civ. 759, 2002 WL 31640585, (S.D.N.Y. Nov. 21, 2002) (dismissing complaint with prejudice where plaintiff had attempted to file a grievance and "the appropriate prison officials have found that there are no mitigating circumstances that would permit him to file an untimely grievance."); Byas v. State of New York, 99 Civ. 1673, 2002 WL 1586963, at *3 (S.D.N.Y. July 17, 2002) (same); Santiago v. Meinsen, 89 F. Supp.2d 435, 441 (S.D.N.Y. 2000) ("[I]t would be contrary to Congress' intent in enacting the PLRA to allow inmates to bypass the exhaustion requirement by declining to file administrative complaints and then complaining that administrative remedies are time-barred and thus not available.") (quoting Wright v. Morris, 111 F.3d 414, 418 (6th Cir. 1997)). Here, ...

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