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CROSS v. CORRECTIONS SERGEANT

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

Opinion

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 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 ...


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