United States District Court, S.D. New York
March 9, 2004.
GEORGE ARCE, Plaintiff,
JOHN P. KEANE, THOMAS J. MILLER, and RONALD K. KROM, Defendants
The opinion of the court was delivered by: BARBARA JONES, District Judge
Plaintiff George Arce, an incarcerated inmate, brings this action
against Defendants pursuant to 42 U.S.C. § 1983. After the
appointment of counsel, Plaintiff filed an amended complaint on July 12,
2002. Defendants move to dismiss the amended complaint on the grounds
that (1) Plaintiff failed to exhaust his administrative remedies; (2)
Plaintiff's Amended Complaint fails to state a claim; and (3) they are
entitled to qualified immunity. For the reasons explained below, the
Court finds that Plaintiff has failed to exhaust his administrative
remedies and GRANTS Defendants' motion to dismiss.*fn1
While incarcerated at Woodbourne Correctional Facility ("Woodbourne"),
Plaintiff, who suffers from asthma, was
originally housed in a single cell in Woodbourne's C-Block. (Compl.
¶ 8).*fn2 On December 18, 1997, Plaintiff was moved out of his
single cell into a dormitory, which also housed cigarette smokers.
(Compl. ¶ 12). After this move, Plaintiff made a series of complaints
in the form of letters or conversations to Defendants
Keane, Krom, and Miller, in which he advised them of his health condition
and requested that he be housed in a nonsmoking environment. (Compl.
¶¶ 13-14, 18-19, 21-23, 26-28). Plaintiff suffered several asthma
attacks, which he attributes to exposure to secondhand smoke in his
dormitory, during this period. (Compl. ¶¶ 15, 17, 35). Plaintiff's
wife also attempted to contact Defendant Keane, via letter and telephone,
requesting that her husband be moved to a non-smoking cell. (Compl. ¶
On January 5, 1998, a medical review of Plaintiff was conducted. The
doctor who evaluated Plaintiff concluded that Plaintiff should be placed
in a single cube beside a window and, if placed in a cell, Plaintiff
should be housed only with a non-smoker. (Compl. ¶ 24). The doctor's
instructions notwithstanding, Plaintiff was not given alternate housing
accommodations, and his asthma attacks continued through March of 1998.
On January 13, 1998, Plaintiff spoke to Defendants Keane and
Krom and asked them to transfer him to a non-smoking cell. (Compl.
¶¶ 26-27). Plaintiff's requests were refused. One week later, on
January 20, 1998, after complaining to Defendant Miller, Plaintiff wets
moved to another dormitory, which was occupied by more smokers than the
previous dormitory in which he had been housed. (Compl. ¶ 28, 30).
Plaintiff contends that this move was made in retaliation for his
complaints regarding his housing accommodations.
After his transfer to the second dormitory, Plaintiff submitted a
"Housing Style Change Request Form" requesting a change of his housing
location. (Compl. ¶ 32). Plaintiff received the following written
response: "Your [sic] already on the single cell list, save the paper and
time." (Compl. ¶ 33).
After several additional attempts to speak to Defendants Keane and
Miller about his housing accommodations, Plaintiff filed a grievance with
the Inmate Grievance Relations Committee ("IRGC") on March 20, 1998
("First Grievance"). (Compl. ¶ 36). It is unclear from Plaintiff's
papers whether he ever received a formal response from the IRGC. For the
purposes of this motion, the Court will assume that he did not.
Plaintiff did subsequently receive several written responses from
Woodbourne indicating that his requests were denied and that Plaintiff
had failed to submit a written request for a change of accommodation.
(Compl. ¶ 39, 41). "The response Plaintiff
received from Defendant Miller, dated March 24, 1998, "indicat[ed]
[Miller] would not consider Arce's requests for a housing change,
claiming the prison had no responsibility in the matter. [The request
also stated] `Be advised that cell mate smoking and compatibility issues
are regulated by law; therefore, your request for special provisions is
not necessary and need not be addressed." (Compl. ¶ 42).
On April 17, 1998, Plaintiff filed a second grievance regarding his
exposure to secondhand smoke and his asthma ("Second Grievance").*fn3
(Compl. ¶ 46). Plaintiff received no response to this grievance from
the IRGC. Plaintiff was transferred out of Woodbourne on May 18, 1998 and
commenced this action on March 28, 2001. (Compl. ¶ 49).
The Prison Litigation Reform Act ("PLRA") requires a plaintiff to
exhaust all available administrative remedies before filing a complaint
in federal court. See 42 U.S.C. § 1997e(a) ("No action
shall be brought with respect to prison conditions under section 1979 of
the Revised Statutes of the United States (42 U.S.C. § 1983), 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.") The New
York State Department of Correctional Services ("DOCS") has
established a three-step grievance process for all prisoner complaints.
See N.Y. Comp. Codes R. & Regs, tit. 7, § 701.7. First,
an inmate must file a grievance with the IRGC, which is composed of
fellow inmates and various prison officials. See id. §
701.7(a). Second, if the inmate is dissatisfied with the IGRC decision,
he must appeal to the superintendent of the facility. See id.
§ 701.7(b). Third, if the inmate does not receive a favorable
decision from the superintendent, he must appeal to the DOCS Central
Office Review Committee ("CORC"). See id. § 701.7(c).
After the inmate completes his appeal to the CORC, the grievance process
is then complete and the inmate, if still dissatisfied, may bring a
complaint in the appropriate court. See Hemphill v. New York,
198 F. Supp.2d 546, 548 (S.D.N.Y. 2002). "A prisoner has not exhausted
his administrative remedies until he goes through all three levels of the
grievance procedure." Id.
There is no dispute that the PLRA's exhaustion requirement "applies to
all inmate suits about prison life." Porter v. Nussle,
534 U.S. 516, 532 (2002). Here, Plaintiff failed to exhaust his administrative
remedies because, although he filed two formal written grievances, he
failed to appeal the denial or
lack of response to those grievances to the superintendent of the
facility. An inmate's failure to appeal a grievance is not excused
because he has received no response to his initial grievance.
Among other reasons, Congress enacted §
1997e(a) to give prison officials an opportunity
to take corrective actions that might obviate the
need for litigation and to assure that
adjudication by federal courts would be
facilitated by an -administrative record that
clarifies the contours of a controversy. See
Porter, 534 U.S. at 524-25; Booth v.
Churner, 532 U.S. 731, 737 (2001). Allowing
an inmate to opt out of New York's grievance
scheme without filing even one appeal and before
receiving any response from prison authorities
would undermine these goals. New York's
legislature, recognizing that some grievances will
not be answered within seven days, gave prisoners
the right to bring their grievances to the
attention of the Superintendent even in the
absence of an adverse response from the IGRC.
See N.Y. Comp. Codes R. & Regs., tit. 7,
§ 701.8. It is unreasonable to read these
regulations as providing that a federal action is
the next and only recourse when the prison fails
to respond to an initial grievance.
Petty v. Goord, 2002 U.S. Dist. LEXIS 21197, at *13-14
(S.D.N.Y. Nov. 4, 2002) (emphases added); see also McNair v.
Jones, 2002 U.S. Dist. LEXIS 17409, at *30 n.5 (S.D.N.Y. Sept. 18,
2002); Sims v. Blot, 20003. U.S. Dist. Lexis 12729 (S.D.N.Y.
July 30, 2003). But see John v. N.Y.C. Dep't of Corrs.,
183 F. Supp.2d 619, 625 (S.D.N.Y. 2002) (finding that the plaintiff exhausted
administrative remedies under N.Y. Comp. Codes R. & Regs., tit.
7, § 701 where he filed a grievance and received no response
because "there was no [adverse] decision to appeal").
Nonetheless, Plaintiff maintains that his claims should not be
dismissed because they fall within a narrow exception that allows an
incarcerated plaintiff to maintain an action "even when the requirements
of all administrative remedies have not technically been exhausted." (Pl.
Mem. at 10).
Two exceptions to the PLRA's exhaustion requirement were articulated in
O'Connor v. Featherstone, 2002 WL 818085 (S.D.N.Y. April 29,
2002), two months after the Supreme Court reiterated the exhaustion
requirement in Porter v. Nussle. O'Connor held that an inmate
may defeat a motion to dismiss even when administrative remedies have not
technically been exhausted if (1) the inmate was led to believe by prison
officials that his alleged incident was not a "grievance matter" and
assured that his claims were otherwise investigated; or (2) the 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 impeded or prevented his efforts.
O'Connor, 2002 WL 818085, at *2. Even assuming that these are
valid exceptions to the exhaustion requirement, Plaintiff's arguments are
Here, Plaintiff does not allege that corrections officers impeded or
prevented his efforts to follow the grievance
procedure. Rather he argues that his two formal grievances and
numerous letters evidence "substantial and repeated efforts to obtain a
remedy under DOCS' procedures," and because Defendants instructed
Plaintiff to "save the paper and time" and told him that his requests
"[are] not necessary and need not be addressed," the remedies
contemplated by the PLRA "were not `available' under the meaning of the
PLRA." (Pl. Mem. at 13-14).
The Court reads Plaintiff's argument as two-fold: First, that
Plaintiff's efforts including his informal letters, oral
conversations, and two formal grievances constitute a "reasonable
attempt" to exhaust his administrative remedies; and second, that
Defendants' comments that Plaintiff should "save the paper and time" and
that Plaintiff's requests "[are] not necessary and need not be addressed"
led Plaintiff to believe that his alleged incident was not a "grievance
matter" and/or that his complaints were being investigated. Neither
argument is convincing.
It is well established that writing letters to prison officials is
insufficient to exhaust administrative remedies. E.g.,
Mills v. Garvin, 2001 WL 286784 at *3 (S.D.N.Y. Mar. 2, 2001)
("letter writing is not the equivalent of an exhaustion of administrative
remedies under the PLRA"). Therefore, Plaintiff's letters and
conversations with Defendants are not relevant in determining whether he
exhausted his administrative remedies.
Moreover, Plaintiff could not have reasonably believed that Defendants'
statements indicated that he need not follow the three-step grievance
procedure. The comment that Plaintiff was already on the list to be
transferred to a single cell and that he should "save the paper and the
time" i.e., stop sending written complaints was
made in response to Plaintiff's "Housing Style Change Request Form" and,
therefore, Plaintiff could not reasonably believe that he was being
instructed not to file a grievance. Furthermore, this comment was made
before Plaintiff filed his First Grievance. Plaintiff could not
have reasonably believed that a comment made before he filed his First
Grievance justified his failure to appeal that grievance when he received
The second comment, that Plaintiff's requests " [are] not necessary and
need not be addressed," was made after Plaintiff filed his First
Grievance. However, in his Memorandum of Law, Plaintiff described this
comment as being made in a document that "indicat[ed] [Miller] would not
consider Arce's requests for a housing change, claiming the prison had no
responsibility in the matter." (Pl. Mem. at 7). Such a comment cannot be
read as preventing or obstructing Plaintiff from filing a grievance or
appealing the denial of a grievance. Cf. Thomas v. N.Y. State Dep't
of Corr. Servs., 2003 U.S. Dist. LEXIS 20286, at *13 (S.D.N.Y. Nov.
10, 2003) (dismissing plaintiff's claims for
failure to exhaust even though two prison officials told plaintiff
he need not file a grievance; "while [plaintiff] was told that it was not
necessary for him to file a grievance, there is no evidence that, he was
told that he could not file a grievance. Thus, the instructions are
properly understood as bad advice, not prevention or obstruction.").
Indeed, Plaintiff does not appear to have relied upon Miller's comment,
as he filed a second grievance with the IGRC after receiving
Miller's March 24, 1998 response. In any event, the Court finds that the
types of representations made in this case by prison officials outside of
the grievance process do not warrant an exception to the exhaustion
requirement. Such an exception is at odds with the Congressional goals of
reducing the quantity and improving the quality of prisoner suits by
affording corrections officials time and opportunity to address
complaints internally before allowing the initiation of a federal case.
Porter, 534 U.S. at 524-525.
Finally, Plaintiff argues that an appeal to Defendant Keane was not an
"available" administrative remedy, as contemplated by the PLRA, because
Keane had refused his previous informal requests and because, in a letter
to Plaintiff's counsel dated March 23, 1998, Defendant Keane had denied
ever receiving a written request from Arce to be transferred to a
cell.*fn4 (Def. Mem. at 13). Plaintiff's argument is unclear, but
presumably he is arguing that, in light of Defendant Keane's previous
refusals and allegedly false statement that he had not received any
written requests from Plaintiff to change his housing accommodations, an
appeal to Defendant Keane would have been fufile. However, futility will
not excuse an inmate's failure to exhaust his administrative remedies.
Cf. Porter, 534 U.S. at 524 ("Even when the prisoner seeks
relief not available in grievance proceedings, notably money damages,
exhaustion is a prerequisite to suit."). In any event, even assuming that
Defendant Keane would have denied Plaintiff's appeal, Plaintiff still
could have obtained relief from the CORC, which would have "afforded
corrections officials time and opportunity to address complaints
internally before allowing the initiation of a federal case." Id. at 525.
Because Plaintiff failed to exhaust his administrative remedies before
filing this action, the Court GRANTS Defendants' motion and dismisses
Plaintiff's claims without prejudice. See Morales v. Mackalm,
278 F.3d 126, 128, 131 (2d Cir. 2002) (per curiam) ("clarif[ying] that if
a district court dismisses a prisoner's complaint for failure to exhaust
administrative remedies, it should do so without prejudice").
The Clerk of the Court is directed to close this case.