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MARTE v. CORAL

United States District Court, S.D. New York


February 11, 2004.

ANTONIO MARTE, Plaintiff, -against- CAPTAIN CORAL, et ano., Defendants

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

ORDER

On January 14, 2003, this action was dismissed without prejudice sua sponte because it appeared that plaintiff had failed fully to exhaust his administrative remedies in accordance with the Prison Litigation Reform Act of 1995, codified at 42 U.S.C. § 1997e(a) (providing 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"). By letter dated November 18, 2003, plaintiff asserts that he repeatedly has attempted to exhaust his administrative remedies through the New York City Department of Correction ("DOC") grievance procedures, but he has received no response from DOC to his correspondence. In these circumstances, plaintiff seeks permission to pursue his claims in this Court.

Taking into account plaintiff's pro se status, I liberally construe the letter as a motion for reconsideration pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (pro se papers should be interpreted "to raise the strongest arguments that they suggest").

  Plaintiff claims that defendants repeatedly slammed his head against a wall while he was handcuffed on April 17, 2002 at Rikers Island. The complaint alleges that he filed a formal grievance on April 17, 2002 and still had not received a response from DOC at the time he originally submitted his papers to this Court. It fails to allege, however, that DOC excludes assaults from its grievance procedures. See DOC Directive No. 3375R, ¶ II(B) (March 4, 1985) ("non-grievable issues" include "complaints pertaining to an alleged assault"). In light of this provision, I grant plaintiffs motion for reconsideration. See Mojias v. Johnson, 351 F.3d 606 (2d Cir. 2003) (holding that when considering sua sponte dismissal for failure to exhaust, the district court first must "establish from a legally sufficient source that an administrative remedy is applicable and that the particular complaint does not fall within an exception").

  Accordingly, plaintiff's motion for reconsideration is granted. The order dated January 14, 2003, hereby vacated. A summons shall be issued from this Court and served upon the defendants according to the provisions of Rule 4 of the Federal Rules of Civil Procedure. The Clerk of Court is directed to designate this action as a Local Rule 33.2 case and the parties are advised that any discovery in this action shall be conducted in accordance with Local Rule 33.2.

  Plaintiff is permitted to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a)(1) and the Pro Se Office is directed to forward to plaintiff the necessary materials to enable the United States Marshals Service to serve defendants. Plaintiff is directed to serve a copy of this Order along with the summons, complaint, plaintiff's motion for reconsideration, and the Local Rule 33.2 standard interrogatories upon defendants as prescribed by Rule 4 of the Federal Rules of Civil Procedure. Nothing in this Order shall be construed as an opinion on the merits or timeliness of plaintiff's claims, and nothing herein shall be construed to prevent defendants from raising any defenses, by pleading or motion, to which they are entitled.

  SO ORDERED.

20040211

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