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United States District Court, S.D. New York

February 20, 2004.


The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge


This is a pro se action brought by a state prisoner under 42 U.S.C. § 1983, alleging that three correctional officers at Downstate Correctional Facility used excessive force against him. Defendants are Correction Sergeant Steven Radomski and Correction Officers Joseph Kowalski and Barclay L. Cook.

Now before the Court is defendants' motion to dismiss for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e. The motion is granted.


  Because the instant motion is the third dispositive motion decided by the Court in this case, a review of the procedural history of the case, as well as the general allegations of plaintiff's complaint, is appropriate. Page 2

  Plaintiff alleges that on February 5, 1998 defendants entered plaintiff's cell at Downstate Correctional Facility and ordered him to stand against the wall. Plaintiff alleges that Cook accused him of throwing food at correctional officers. Plaintiff then felt a blow in his left rib area. Plaintiff alleges that he fell to the floor in pain, at which point Kowalski handcuffed him and Cook and Radomski kicked and beat him. Plaintiff's complaint also contains allegations of excessive force committed by fourth correctional officer, Matthew Wolfert, in an incident on April 10, 1998.

  Plaintiff commenced this action on January 4, 1999. Plaintiff apparently concedes that he did not, prior to filing the action, invoke the administrative grievance procedure established by the New York State Department of Correctional Services. The original complaint states that petitioner sent a grievance letter to the Inspector General. However, in opposition to a prior motion to dismiss and the currently pending motion, petitioner admits that official channels for administrative grievances were not pursued.

  On August 25, 1999 defendants moved to dismiss the complaint on two grounds, which motion the Court granted in part and denied in part in an opinion of August 18, 2000.

  First, defendants argued that the allegations against Wolfert failed to state a cause of action under the Eighth Page 3 Amendment. The Court granted this portion of the motion and dismissed the claim against Wolfert.

  Defendants also argued that the remainder of plaintiff's claims should be dismissed because plaintiff failed to exhaust available administrative remedies, as was required by the PLRA. The Court's August 18 opinion analyzed the relevant provision of the PLRA, which stated that a prisoner may not bring an action "with respect to prison conditions . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The Court concluded that the phrase "prison conditions" did not cover damage suits alleging incidents of excessive force, and that consequently plaintiff's failure to exhaust available administrative remedies was not a bar to bringing the instant action. Therefore, the Court denied defendants' motion to dismiss the claims against Radomski, Kowalski, and Cook.

  On September 11, 2000, plaintiff filed a motion for summary judgment. The Court denied the plaintiff's motion on May 30, 2001.

  On September 26, 2001 the Court directed that pro bono counsel be appointed to represent plaintiff in further proceedings in the instant action. An attorney entered a notice of appearance on behalf of plaintiff on December 20, 2001.

  As will be discussed in more detail below, on February 26, Page 4 2002 the Supreme Court decided Porter v. Nussle, 534 U.S. 516 (2002). This decision directly contradicted this Court's holding of August 18, 2001 that the PLRA exhaustion requirement was inapplicable to damages suits brought by prisoners alleging incidents of excessive force.

  On April 25, 2002 defendants filed the motion to dismiss currently before the Court, relying on Porter in arguing that plaintiff's failure to exhaust administrative remedies mandates dismissal of his complaint.

  On May 29, 2002 plaintiff's attorney moved the Court to be relieved as pro bono counsel, which motion the Court granted on July 31, 2002. Plaintiff has proceeded pro se since that time.


  The only issue before the Court is whether plaintiff's failure to exhaust administrative remedies prior to filing the instant action is grounds for dismissal.

  Plaintiffs pursuing claims under 42 U.S.C. § 1983 ordinarily are not required to exhaust administrative remedies prior to filing suit in court. See Patsy v. Board of Regents of Florida, 457 U.S. 496 (1982). Suits brought by prisoners, however, do not fall within this general rule. Rather, the PLRA requires 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 Page 5 facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Under New York law, each state correctional facility has established procedures for prisoners to file complaints with and to appeal from decisions of grievance resolution committees. N.Y. Correction Law § 139; 7 N.Y.C.R.R. § 701 et seq.

  For some time following the 1996 passage of the PLRA there was a lack of consensus in the federal courts whether the statutory phrase "prison conditions" applied to prisoner suits alleging the use of excessive force by prison employees in violation of the Eighth Amendment. See, e.g., Nussle v. Willette, 224 F.3d 95 (2d Cir. 2000); Cross v. Radomski, No. 99 Civ. 2186, 2000 WL 1175771 (S.D.N.Y. Aug. 18, 2000); Wright v. Dee, 54 F. Supp.2d 199 (S.D.N.Y. 1999). The Supreme Court clarified the issue in 2002, reversing the Second Circuit's decision in Nussle and holding that "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter, 534 U.S. at 531.

  Thus, after Porter, it is clear that prisoners bringing claims of excessive force under § 1983 or any other federal law must exhaust administrative remedies available to them before filing suit in court. Moreover, courts in this Circuit are in Page 6 agreement that Porter applies retroactively to cases filed before the Supreme Court's decision. See Rivera v. Pataki, 01 Civ. 5179, 2003 WL 21511939 at *3 n.4 (S.D.N.Y. July 1, 2003); Hemphill v. New York, 198 F. Supp.2d 546, 550 (S.D.N.Y. 2002); see also Landgraf v. USI Film Products, 511 U.S. 244 (1994).

  Plaintiff did not file an administrative grievance regarding the February 1999 incident complained of in the instant action. Pursuant to the PLRA, as interpreted by Porter, plaintiff's claim must therefore be dismissed without prejudice. See Neal v. Goord, 267 F.3d 116, 122-23 (2d Cir. 2001); McCoy v. Goord, 255 F. Supp.2d 233, 253 (S.D.N.Y. 2003).

  As plaintiff notes, § 1983 claims in New York are subject to a three-year statute of limitations, and thus plaintiff's time for bringing a claim arising from the February 1998 incident expired in 2001. See Owens v. Okure, 488 U.S. 235, 251 (1989); Rivera, 2003 WL 21511939 at *8. However, plaintiff may enjoy the safe harbor of section 205(a) of the New York C.P.L.R., which gives a plaintiff six months to assert in a new action any claim included in the present action as long as the statute of limitations had not run on the claim at the time plaintiff filed this action in 1999. See N.Y. C.P.L.R. § 205(a); Rivera, 2003 WL 21511939 at *8 & n.13. Thus, plaintiff may assert his claim arising from the February 1998 incident in a new complaint, provided that the administrative remedies are exhausted when he Page 7 files that complaint.

  The Court does observe that plaintiff may not in fact be able to pursue an administrative grievance of his claim, due to the fact that prisoner grievances apparently must be filed within fourteen days of the occurrence of the event complained of. The proper procedure for plaintiff to follow, therefore, is to seek a waiver of the time limit due to mitigating circumstances (e.g., the change in federal law regarding exhaustion during the pendency of his claim). 7 N.Y.C.R.R. § 701.7(a)(1); see also Benjamin v. Goord, 02 Civ. 1703, 2002 WL 1586880 at *2 n.5 (S.D.N.Y. Jul. 17, 2002).


  Defendants' motion to dismiss is granted, and plaintiff's complaint is dismissed without prejudice.



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