The opinion of the court was delivered by: Kevin Fox, Magistrate Judge
REPORT and RECOMMENDATION
TO THE HONORABLE GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE
In this action, brought pursuant to 42 U.S.C. § 1983, the defendants have made a motion that the plaintiffs complaint be dismissed, pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure, because the plaintiff failed to exhaust available administrative remedies prior to initiating this action as he is required to do pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997(e).
The plaintiff opposes the motion. He contends that after he filed a grievance, and a determination was rendered thereon, "no appeal papers whatsoever" were provided to him so that he might pursue an administrative appeal. Furthermore, he maintains that he filed a complaint with the Office of the Inspector General and, therefore, "full exhaustion [of his administrative remedies was] futile." [ Page 2]
In June 1998, the plaintiff was in the visitor's area of the Sing Sing Correctional Facility. Plaintiffs wife had ended her visit with him and was processed by corrections personnel so that she might leave the facility. The plaintiff wanted his wife to return and to continue to visit with him. However, corrections personnel would not permit this. Thereafter, the plaintiff exchanged harsh words with corrections officers who were stationed in the visiting room and assaulted one of them. This caused other corrections officers to come to the aid of their colleague. A fracas ensued when the responding corrections officers attempted to subdue the plaintiff and to remove him from the visiting room. As the officers struggled with the plaintiff, defendant Corrections Officer Richard Duarte ("Duarte") recalls, the plaintiff grabbed a baton from one of the officers and refused to drop it when he was directed to do so. Therefore, Duarte used his own baton to strike the plaintiff twice on his back. The other corrections officers who assisted in subduing the plaintiff recalled that, during the struggle, a baton fell from its holder on an officer's waist and the plaintiff retrieved it from the floor. All of the defendants involved in the struggle contend that after the plaintiff was struck with the baton by Duarte, he was taken down to the floor where mechanical restraints were placed on him.
The plaintiff contends that after he was handcuffed, he was beaten about his head with a corrections officer's baton and kicked and punched about his body. The plaintiff alleges that this beating necessitated that he be transported to a hospital facility where sutures could be applied to close a six-inch wound to his head. The plaintiff maintains that the corrections officers involved in this incident employed excessive force against him and thereby violated his Eighth Amendment right to be free from cruel and unusual punishment. [ Page 3]
After a motion for summary judgment was made by the defendants and garnered them only partial relief, the defendants filed the instant motion to dismiss, a memorandum of law in support of the motion and an affidavit subscribed by Thomas G. Eagen ("Eagen"), Director of the Inmate Grievance Program for the New York State Department of Correctional Services. In the affidavit, Eagen explains that he is responsible for, among other things, maintaining records of appeals of grievances filed by inmates who are within the custody of the New York State Department of Correctional Services ("DOCS"). Eagen reports that these records include the computer data that DOCS maintains concerning all appeals made to an entity known as the Central Office Review Committee ("CORC"). Eagen's affidavit notes that CORC is the final level of administrative review in the DOCS Inmate Grievance Program.
Eagen advises that he reviewed the DOCS computer records relating to the appeals to CORC. Through that review, he determined that the plaintiff never appealed any grievance relating to an alleged excessive use of force incident occurring in or about June 1998 at the Sing Sing Correctional Facility. Eagen's review of the relevant records uncovered only one grievance appeal made by the plaintiff to CORC, and that appeal pertained to an incident at the Fishkill Correctional Facility involving an allegation that an ethnic slur was uttered. Since the review of the records undertaken by Eagen revealed that the plaintiff had not filed an appeal from any grievance determination rendered in connection with the incident occurring at the Sing Sing Correctional Facility in June 1998, the defendants maintain that plaintiff has not exhausted the administrative remedies made available to him by the correctional system to challenge the alleged excessive use of force that the plaintiff claims was employed upon him by the defendants during that incident. [ Page 4]
After the defendants filed the instant motion, the plaintiff submitted an affidavit in opposition to the motion. Plaintiff contends, as noted above, that: 1) after a determination was rendered on his grievance, he did not receive any papers through which he might have appealed from that determination; and 2) he made a complaint to the Inspector General's Office which made full exhaustion of his administrative appeal remedies futile.
When a § 1983 action is brought by a prisoner, the court's subject matter jurisdiction is constrained by 42 U.S.C. § 1997(e), as amended by the Prison Litigation Reform Act. 42 U.S.C. § 1997(e)(a) provides, in relevant part:
No action shall be brought with respect to prison
conditions under section 1983 . . . 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
"Failure to exhaust administrative remedies permits a court to dismiss the action because no subject matter jurisdiction exists." DiLaura v. Power Authority of State of New York, 982 F.2d 73
, 79 (2d Cir. 1992). The requirement set forth at 42 U.S.C. § 1997(e)(a), that a prisoner exhaust all administrative remedies available to him before the prisoner may properly commence an action under 42 U.S.C. § 1983 concerning prison conditions, "applies to all inmate suits about prison life, ...