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ARCE v. KEANE

March 9, 2004.

GEORGE ARCE, Plaintiff,
v.
JOHN P. KEANE, THOMAS J. MILLER, and RONALD K. KROM, Defendants



The opinion of the court was delivered by: BARBARA JONES, District Judge

Opinion

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

BACKGROUND

  While incarcerated at Woodbourne Correctional Facility ("Woodbourne"), Plaintiff, who suffers from asthma, was Page 2 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. ¶ 20).

  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 Page 3 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 Page 4 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).

  DISCUSSION

  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 Page 5 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 Page 6 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 ...

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