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January 22, 2004.

LUIS ROSALES, Plaintiff,
F.G. BENNETT, et al, Defendants

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. Page 2


 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. 2003).

  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 administrative appeals Page 3 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). Page 4

  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 ¶¶ 23-28.

  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 Plaintiff's Page 5 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 ...

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