United States District Court, S.D. New York
February 20, 2004.
JERMAINE CROSS, Plaintiff, -against- CORRECTIONS SERGEANT STEVEN RADOMSKI, CORRECTIONS OFFICER BARCLAY L. COOK, and CORRECTIONS OFFICER JOSEPH P. KOWALSKI, Defendants
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.
FACTS AND PROCEDURAL HISTORY
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
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
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,
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
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
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
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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