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United States District Court, S.D. New York

January 15, 2004.

STEWART T. RICHARDSON, Plaintiff, -against- A. LORENZO and J. MALDONADO, Defendants

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge


This is a Section 1983 excessive force case brought by a state prison inmate against two state correction officers in consequence of two separate alleged incidents. Defendant Lorenzo moves to dismiss or, alternatively, for summary judgment dismissing the amended complaint for failure to exhaust. Plaintiff has not responded to the motion although he filed a second amended complaint, without the required leave of court, following the filing of Lorenzo's motion. As the second amended complaint in the respect relevant here is identical to the first amended complaint, the motion is deemed applicable to that pleading.

The amended complaint, which was filed in response to an order of Chief Judge Mukasey dismissing the initial complaint for failure to allege exhaustion of administrative remedies, alleges that the plaintiff availed himself of the prison grievance procedures in that he "wrote a greivance [sic] pertaining to what happened in the incident." Am Cpt § II.C. 1. Accord, Sec Am Cpt

  § II.C. 1. But it fails to allege that grievances were filed with respect to both incidents alleged in the amended complaint. Thus, crediting the allegations of the amended complaint, plaintiff has not exhausted with respect to one of the incidents, and it is impossible to determine that he claims to have exhausted his administrative remedies as to either. This alone requires dismissal.

  Lorenzo seeks to clarify this by the submission of an declaration of a DOCS official who is the custodian of the records of the Central Office Review Committee ("CORC") under the grievance program. The custodian contends that a search of the records reveals only a single appeal to CORC by a Sing Sing inmate who alleged employee harassment and purports to attach as Exhibit A the print-out that is said to establish this fact. Exhibit A to the declaration, however, reveals three grievances by plaintiff. While the characterizations of the subject of these three grievances — the Page 2 longest of which is five words in length — suggest that only one relates to the incidents at issue here, it would be inappropriate to rely on these characterizations rather than on the grievances themselves, particularly given the defendant's failure to demonstrate the admissibility of the print-out. Thus, even if the Court were to convert the motion to one for summary judgment, the papers submitted on behalf of defendant Lorenzo would be insufficient to warrant summary judgment dismissing for failure to exhaust.

  In all the circumstances, the appropriate course is to grant the motion to dismiss pursuant to Rule 12(b)(6) and to decline to convert the motion into one for summary judgment. The motion to dismiss as to defendant Lorenzo for failure to exhaust administrative remedies is granted. As it is not clear that plaintiff cannot establish exhaustion, however, the dismissal is without prejudice to the filing, on or before February 15, 2004, of a third amended complaint demonstrating exhaustion of administrative remedies with respect to all incidents and all defendants.

  The Court notes that there is no indication of record that defendant Maldonado ever has been served with process although the 120 days within which to do so has expired. Accordingly, the action is dismissed as to defendant Maldonado pursuant to Fed.R.Civ.P. 4(m).

  SO ORDERED. Page 1


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