The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
Plaintiff, Willie Jenkins, an inmate in the custody of the New York
State Department of Correctional Services ("DOCS"), commenced this action
pro se under 42 U.S.C. § 1983 on August 31, 2001 against six DOCS
employees.*fn1 Plaintiff alleges that defendants assaulted him on April
7, 2001 at Southport Correctional Facility in violation of his Eighth
Amendment rights. (Dkt. #1). Defendants have now moved for summary
judgment solely on the ground that plaintiff has failed to exhaust his
administrative remedies, as required by the Prison Litigation Reform Act
("PLRA"), 42 U.S.C. § 1997e(a), and the Supreme Court's decision in
Porter v. Nussle, 534 U.S. 516 (2002). As set forth below, defendants'
motion is denied.
Section 1997e(a) provides 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." New York State regulations provide for a three-step
administrative 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. If the IGRC's decision is appealed, the inmate may appeal to the
superintendent of the facility, and if the superintendent's decision is
appealed, the Central Office Review Committee ("CORC") makes the final
administrative determination. See 7 N.Y.C.R.R. § 701.7. In general,
it is only after exhausting all these administrative procedures that a
prisoner may seek relief pursuant to 42 U.S.C. § 1983 in federal
court. Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001); Peoples v.
Beldock, 212 F. Supp.2d 141, 142 (W.D.N.Y. 2002). Nevertheless, the
Second Circuit recently held that the PLRA's exhaustion requirement was
not jurisdictional in nature, and is, therefore, subject to equitable
doctrines. Richardson v. Goord, 347 F.3d 431, 434 (2d Cir. 2003) (per
In their motion, defendants assert that although plaintiff filed a
grievance concerning the incident, he never filed an appeal with the CORC
from the Superintendent's decision denying his grievance. Therefore,
according to defendants, plaintiffs complaint should be dismissed.
Construing plaintiffs pro se responses liberally and interpreting them
"to raise the strongest arguments that they suggest," see Corcoran v. New
York Power Auth., 202 F.3d 530, 536 (2d Cir. 1999) (quotations omitted),
plaintiff argues that he substantially complied with (or otherwise
satisfied) the exhaustion requirement. (See Plaintiff's Response to
Defendants' Motion for Summary Judgment; Plaintiffs Motions for a Stay
and for Appointment of Counsel; Dkts. ##36, 42, 43).
The records show that plaintiff attempted to exhaust his administrative
remedies through both formal and informal channels. There is no dispute
that within days of the incident, plaintiff wrote a letter to the
defendants' supervisor, the Deputy Superintendent of Security, and filed
a grievance with the IGP Supervisor complaining about the incident.
Plaintiff received a response to his informal complaint days later, but
was not told how to appeal that decision. Plaintiff did not receive a
formal response to his grievance within the DOCS prescribed time limit of
fourteen days. Instead, five months later, and after plaintiff filed this
complaint, Superintendent McGinnis sent plaintiff a decision denying his
grievance. (See documents related to plaintiff's grievance and informal
complaint, Dkt. #32, at Ex. C.). Plaintiff alleges that he wrote to both
Superintendent McGinnis and CORC Director Eagen detailing his efforts to
exhaust his remedies regarding his claims. Those documents, however, are
not before the Court, although Eagen acknowledges in an affidavit that he
received correspondence from the plaintiff related to this grievance.
Although "[g]enerally, corrections officials are entitled to strict
compliance with administrative procedures," Rivera v. Goord,
253 F. Supp.2d 735, 746 (S.D.N.Y. 2003), there are circumstances in which
an inmate plaintiff's failure to exhaust his remedies may be excused. For
instance, a "plaintiff may proceed despite nonexhaustion where he has
been' led to believe by prison officials that his alleged incident was
not a "grievance matter" and assured that his claims were otherwise
investigated,'" id. at 747 (quoting O'Connor v. Featherston, No. 01 Civ.
3251, 2002 WL 818085, *2 (S.D.N.Y. Apr. 29, 2002); see Heath v.
Saddlemire, No. 96-CV-1998, 2002 WL 31242204, at *4-5 (N.D.N.Y. Oct. 7,
2002) (holding that defendants were estopped from asserting
nonexhaustion where plaintiff relied on letter from defendants stating
that he had "followed the correct procedure by notifying the Inspector
General of [his] complaint"). Similarly, nonexhaustion will not bar a
claim "where a plaintiff has been led to believe that administrative
remedies were unavailable." Rivera, 253 F. Supp.2d at 747; see also Berry
v. City of New York, No. 00 Civ. 2834, 2002 WL 31045943, at *8 (S.D.N.Y.
June 11, 2002) (stating that defendant may be estopped from asserting
nonexhaustion as a defense where plaintiff had been led to believe that
filing of a grievance would be "`impossible or fufile,'" but finding no
basis for such belief where plaintiff had previously filed several
grievances in other matters and had been successful in at least one)
(quoting Burns v. Moore, 99 Civ. 0966, 2002 WL 91607, at *5 (S.D.N.Y.
Jan. 24, 2002)).
In a similar vein, courts in this circuit have held that "an inmate's
technical failure to exhaust administrative remedies before commencing a
§ 1983 action may be excused where officials prevented him from
utilizing a grievance procedure." Arnold v. Goetz, 245 F. Supp.2d 527,
537 (S.D.N.Y. 2003). See also Miller v. Norris, 247 F.3d 736, 740 (8th
Cir. 2001) ("a remedy that prison officials prevent a prisoner from
`utiliz[ing]' is not an `available' remedy under § 1997e(a)"); Thomas
v. New York State DOCS, No. 00 Civ. 7163, 2002 WL 31164546, at *3
(S.D.N.Y. Sept. 30, 2002) ("where a prisoner has made a `reasonable
attempt' to file a grievance, and prison officials have prevented the
prisoner from filing that grievance, the grievance procedure is not
`available' to the [inmate], and thus the [PLRA] does not preclude the
prisoner from suing in federal court"); O'Connor, ("several courts have
held that an inmate may nonetheless defeat a motion to dismiss even when
the requirements of administrative remedies have not technically been
exhausted where . . . an inmate makes a `reasonable attempt' to exhaust
his administrative remedies, especially where it is alleged that
corrections officers failed to file the inmate's grievances or otherwise
prevented his efforts . . . "); Gonzalez v. Officer in Charge of Barber
Shop on Duty on May 13, 1999, No. 99 Civ. 3455, 2000 WL 274184, at *3
(S.D.N.Y. Mar. 13, 2000) (refusing to dismiss inmate's § 1983 action
where plaintiff alleged that he attempted to file grievances but was
frustrated in these efforts by prison officials). "In essence, prison
officials cannot have it both ways they cannot obstruct an
inmate's pursuit of administrative exhaustion on the one hand and then
claim the inmate did not properly exhaust these remedies on the other."
Arnold, 245 F. Supp.2d at 537.
Here, it appears that plaintiff did make "reasonable attempts" to file
and prosecute his grievances. There is no indication that he simply
bypassed the grievance procedure; on the contrary, plaintiff's efforts to
grieve the April 7, 2001 incident are well documented, and it appears
that the DOCS officials failed to take timely action on his grievance
until after he filed this law suit. I find, therefore, that based on
plaintiff's reasonable attempts to exhaust his administrative remedies,
the exhaustion requirement has been satisfied here. See Lane v. Doan,
No. OO-CV-6110, 2003 WL 22382954 (W.D.N.Y. Sept. 5, 2003) (plaintiff
satisfied exhaustion requirement where plaintiff made reasonable efforts
to exhaust his remedies formally and informally but DOCS officials failed
to respond to his complaints); Lewis ex rel Lewis v. Gagne,
281 F. Supp.2d 429, 435 (N.D.N. Y. 2003) (finding that "plaintiffs'
informal efforts demonstrate a reasonable attempt to exhaust all possible
means before filing in federal court"); O'Connor, 2002 WL 818085, at *2
(listing plaintiff's making a "reasonable attempt" to exhaust
administrative remedies as one reason courts have found exhaustion of
remedies outside a grievance procedure); Preslar v. Dr. Tan, No.
OO-CV-6103, 2003 WL 553273, at *3 (W.D.N.Y. Feb. 6, 2003) ("Other courts
in this Circuit have held that where a prisoner has made a `reasonable
attempt' to file a grievance, and prison officials have prevented the
prisoner from filing that grievance, the grievance procedures are
not `available' to him and, thus, the [PLRA] does not preclude the
prisoner from suing in federal court").
I also note that New York regulations provide for an informal grievance
procedure, which is "intended to supplement, not replace, existing formal
or informal channels of problem resolution." 7 N.Y.C.R.R. § 701.1.
The Second Circuit has held "that under the administrative scheme
applicable to New York prisoners, resolution of an inmate's grievances
through [these] informal channels can satisfy the exhaustion requirement
of 42 U.S.C. § 1997e(a)." Ortiz v. McBride, 323 F.3d 191, 194 (2d
Cir. 2003) (citing Marvin v. Goord, 255 F.3d 40, 43 n. 3 (2d Cir. 2001)
(per curiam)); see also Richardson, 347 F.3d at 434-35 (question of fact
regarding whether plaintiff's informal efforts to exhaust his
administrative remedies was sufficient to satisfy PLRA precluded summary
judgment); Lewis, 281 F. Supp.2d at 436 (finding that plaintiff's pursuit
of his grievance through informal channels was sufficient to satisfy
exhaustion requirement, and observing that "[defendants] were afforded,
and took advantage of, the opportunity to address Lewis's claims. The
allegations in this case do not amount to the classic frivolous claim
Congress sought to `filter out' in enacting the PLRA") (footnote
omitted); see also 7 N.Y.C.R.R. § 701.11 (outlining alternative
procedure for claims of harassment). I therefore find that the exhaustion
requirement has been satisfied on that ground as well.*fn2
Defendants' motion for summary judgment (Dkt. #29) is denied.