The opinion of the court was delivered by: Lewis Kaplan, District Judge
Plaintiff alleges that defendant violated his Eighth Amendment right to be free from cruel and unusual punishment when he displayed deliberate indifference to a palpable risk of a violent attack on plaintiff by another inmate in retaliation for plaintiff's grand jury testimony against a member of the same gang. Defendant has moved to dismiss for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act of 1996, 42 U.S.C. § 1997e(a).
In a report dated August 22, 2003, Magistrate Judge Frank Maas recommended that the Court reject plaintiff's contention that his May 2002 grievance satisfied the exhaustion requirement but recommended also that the motion be denied on the ground that there is a genuine issue of material fact as to whether petitioner made an effort to file a grievance in February 2001. Defendant objects to the report and recommendation insofar as it recommends denial of the motion while plaintiff does so to the extent that it concluded that the May 2002 grievance was insufficient.
Contrary to defendant's contention, it is immaterial whether the motion properly is treated as a Rule 12(b)(6) converted into a motion for summary judgment by the submission and consideration of materials outside the complaint or as a Rule 12(b)(1) motion addressed to the existence of subject matter jurisdiction. In either event, the existence of a genuine issue of material fact would be sufficient to defeat the motion.
In this case, there plainly is an genuine issue of fact. Plaintiff asserts that, in February 2001, he wrote letters to the Superintendent and the Inspector General and slipped a "plain paper" grievance under his cell door for recovery by guards. Defendant disputes this, arguing that the Department of Correctional Services has no record of any of this and that the credibility of plaintiff's Page 2 account is undercut by several circumstances including his failure to mention these events in subsequent situations in which some reference arguably would have been logical and appropriate. But the bottom line is that plaintiff's affidavit is sufficient to raise a genuine issue notwithstanding defendant's circumstantial evidence to the contrary.
Defendant's fallback position, although perhaps not stated in precisely these terms, is that any factual dispute on this point is not material because plaintiff did not exhaust even on plaintiff's version of the events. On this point, however, the Court finds no basis for disagreement with Magistrate Judge Maas' contrary view. The defendant's suggestions that plaintiff should have pursued the grievance after he was released on parole on February 21, 2001, shortly after he attempted to file it, and again following his reincarceration more than a year later are unpersuasive.
Accordingly, defendant's objections to the report and recommendation are overruled. As this is sufficient to require denial of the motion, there is no occasion for the Court to consider plaintiff's objections with respect to the May 2002 grievance. The defendant's motion to dismiss is denied.
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