The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
Plaintiff, Luis Resales, appearing pro se, filed the complaint
in this action under 42 U.S.C. § 1983 on March 27, 2001. Plaintiff,
an inmate in the custody of the New York State Department of Correctional
Services ("DOCS"), alleges that his constitutional rights were violated
in connection with an administrative segregation hearing ("hearing") in
May 1998, and his subsequent 196-day confinement in the Special Housing
Unit ("SHU") at Elmira Correctional Facility ("Elmira").
After defendants moved for summary judgment, this Court, on September
2, 2003, issued a Decision and Order directing the parties to file
further submissions addressing the issue of whether plaintiff has
exhausted his administrative remedies as required by the Prison
Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). The parties
having done so, the following constitutes the Court's ruling on
defendants' summary judgment motion.
I. Exhaustion of Remedies
The PRLA provides at 42 U.S.C. § 1997e(a) that "[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
as are available are exhausted." This requirement applies "to all
prisoners seeking redress for prison circumstances or occurrences,"
regardless of whether the plaintiffs claim is based on an isolated
incident or on prison conditions in general. Porter v. Nussle,
534 U.S. 516, 520 (2002).
In New York State, administrative remedies for grievances consist of a
three-step review process. First, "an inmate must submit a complaint to
the Grievance Clerk within 14 calendar days of an alleged
occurrence. . . ." 7 N.Y.C.R.R. § 701.7(a)(1). The grievance is then
submitted to the inmate grievance resolution committee ("IGRC") for
investigation and review. The IGRC's decision can be appealed to the
superintendent of the facility, and the superintendent's decision can be
appealed to the Central Office Review Committee ("CORC"), which makes the
final administrative determination. See 7 N.Y.C.R.R. §
701.7. At each step, there are time limits within which the grievance or
appeal must be decided, and "matters not decided within the time limits
[prescribed by the regulations] may be appealed to the next step."
7 N.Y.C.R.R. § 701.8. Only upon exhaustion of these three levels of
review may a prisoner seek relief pursuant to 42 U.S.C. § 1983 in
federal court. Santos v. Hauck, 242 F. Supp.2d 257 (W.D.N.Y.
Where an inmate's federal claims arise directly out of a disciplinary
or administrative segregation hearing, on the other hand (e.g.,
a claim of denial of procedural due process), "he exhausts his
administrative remedies by presenting his objections in the
process, not by filing a separate grievance instead of or in
addition to his ordinary appeal." Flanagan v. Maly, 99 Civ.
12336, 2002 WL 122921 at *2 (S.D.N.Y. Jan. 29, 2002). At the same time,
however, a plaintiff cannot satisfy the PLRA's exhaustion requirement as
to grievable matters that do not directly relate to the conduct
of a hearing simply by alluding to them in his administrative appeal of
the hearing decision. For example, if at the hearing the inmate asserts,
or attempts to assert, allegations of misconduct by the correction
officers involved in the underlying events, the inmate cannot adequately
exhaust his remedies for PLRA purposes through his administrative appeal
of the hearing decision; he must separately grieve the alleged misconduct
of the officers. See Scott v. Gardner, 287 F. Supp.2d 477, 489
(S.D.N.Y. 2003) ("Although completion of the disciplinary appeal process
may satisfy the exhaustion requirement with respect to Scott's claims
that he was denied due process in the disciplinary proceedings,
allegations of staff misconduct related to the incidents giving rise to
the discipline must be grieved"); McCoy v. Goord, 255 F. Supp.2d 233,
246 (S.D.N.Y. 2003) ("Appeal of a disciplinary hearing decision
brought against the inmate does not accomplish exhaustion, even if the
federal complaint and the disciplinary action share the same operative
facts"); Labounty v. Johnson, 253 F. Supp.2d 496, 501 (W.D.N.Y.
2003) ("An appeal from a disciplinary hearing does not satisfy the
grievance exhaustion requirement for an Eighth Amendment claim, even if
the hearing is based on the same set of facts underlying the grievance").
In the case at bar, defendants apparently concede that plaintiff has
exhausted his remedies as to his claims relating to the conduct of the
hearing, and the evidence submitted by plaintiff in response to the
Court's September 2 Decision and Order also indicates that he did appeal
from that decision, and that the appeal was denied. See
Plaintiff's Ex. B (Attachment to Docket #34).
In his administrative appeal, plaintiff raised three claims: that the
hearing officer, defendant Crowley, violated plaintiff's constitutional
right to call witnesses on his behalf; that Crowley improperly refused to
allow plaintiff to present certain evidence; and that there was
insufficient evidence to support Crowley's findings. Id.
In his complaint in this case, plaintiff asserts three causes of
action: that defendants placed him in administrative segregation to
retaliate against plaintiff for having exercised his constitutional
rights; that defendants denied plaintiff's right to procedural due
process in connection with the hearing; and that defendant Bennett, the
Superintendent of the facility where plaintiff was housed at the time,
failed to protect plaintiff from retaliatory conduct. Complaint ¶¶
The second cause of action in plaintiff's complaint here largely tracks
the matters raised in his administrative appeal from the hearing
decision,*fn1 and arises directly out of the conduct of the hearing
itself. Accordingly, plaintiff has sufficiently exhausted his remedies as
to the second cause of action. See Farid v. Ellen, No. 01 CIV.
8292, 2003 WL 23018805, at *2-3 (S.D.N.Y. Dec. 23, 2003).
There is no evidence that plaintiff grieved the matters giving rise to
his first and third causes of action, however. Although plaintiff
attempts to show that during his period of administrative segregation,
defendants and other DOCS staff prevented him from fully or effectively
utilizing the grievance process, the evidence that he has submitted in
that regard relates to matters completely distinct and separate from the
claims raised in his first and third causes of action here. See
Ex. C. Plaintiff has not submitted evidence, nor does he even
allege, that he filed, attempted to file, or even prepared a grievance
concerning the ...