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March 16, 2004.

KELVITT BURGESS, Plaintiff, -v- HENRY GARVIN, Superintendent, Dr. HERBERT E. GOULDING II, and BARBARA A. WILLIAMS, R.N/A.N., Defendants

The opinion of the court was delivered by: GERARD E. LYNCH, District Judge


Plaintiff seeks reconsideration of the Court's August 25, 2003, decision granting defendants summary judgment on grounds of failure to exhaust administrative remedies, as required by the Prisoner Litigation Reform Act ("PLRA"). 42 U.S.C. § 1997e. The Court adheres to its prior ruling that Department of Justice (`'DOJ") remedies for complaints under the Americans with Disabilities Act constitute an administrative remedy for purposes of the PLRA exhaustion requirement, but grants plaintiffs motion in order to permit additional fact discovery on the issue of whether the DOJ complaint procedure constitutes an "available" remedy in this case. Page 2


  Plaintiff Kelvitt Burgess, a New York State prisoner, brought the original action under 42 U.S.C. § 1983, the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, against various prison officials and medical staff, claiming deliberate indifference to his medical needs and failure to accommodate his disability.

  On August 25, 2003, this Court granted defendants' motion for summary judgment, holding that the plaintiffs failure to exhaust all administrative remedies, as required by the PLRA, precluded his ADA claim. Burgess v. Garvin, No. 01 Civ. 10994, 2003 WL 21983006, at *3 (S.D.N.Y. Aug. 19, 2001), The plaintiff had filed and pursued grievances with the New York State prison authorities, but had not availed himself of the administrative remedy provided by DOJ for alleged violations of the ADA by state agencies. See 28 C.F.R. § 35.170 et seq. The Court held that, based on the plain language and intent of the statute, the PLRA's exhaustion requirement was not limited to administrative redress within the prison system, but rather required plaintiff to exhaust all available remedies. Burgess, 2003 WL 21983006, at *3.

  Plaintiff, who had proceeded pro se until the time of the Court's dismissal, is now represented by counsel. He filed a timely motion under Federal Rule of Civil Procedure 59(e) and Local Rule 6.3 to alter or amend the judgment, and under Federal Rule of Civil Procedure 60(b) for reconsideration, on the grounds that the interests of justice and new evidence call for the Court to review its dismissal of his ADA claims. In moving for reconsideration, the plaintiff advances two arguments: first, that the PLRA requires exhaustion of internal prison grievance procedures only, and not external procedures such Page 3 as the DOJ remedy (P. Mem. 7-10), and second, that the DOT administrative remedy should not be considered an "available" remedy under the PLRA. (P. Mem. at 15.)

  In connection with this motion, plaintiff has brought to light new evidence on the availability of the DOJ procedures. This evidence consists of two letters from the DOJ to New York State prisoners in response to their ADA complaints. In these letters, DOJ officials indicate that limited resources and a "large volume of complaints" prevent the DOJ from investigating individual prisoner complaints, except where the Department is undertaking a review of the entire prison system in which the prisoner is incarcerated. (P. Mem. at 15, Ginsberg Decl. Ex. B.) Additionally, plaintiff offers evidence that New York State Department of Correctional Services ("DOCS") does not make the DOJ complaint process available and known to prisoners. Based on this evidence, plaintiff argues that the DOJ remedy is not "available" because DOJ does not act upon individual prisoner complaints (P. Mem. at 15-16, P. Reply at 8), and because he had no notice of the DOJ procedure. (P. Reply at 9, Ginsberg Decl. Supp. P. Reply at ¶ 8.)


 I. Motion for Reconsideration Standard

  In order to prevail on a Rule 59(e) motion,*fn1 the moving party must present "[factual] matters or controlling decisions the court overlooked that might materially have influenced its earlier decision." Griffin Industries. Inc. v. Petrojam, Ltd., 72 F. Supp.2d 365, 368 (S.D.N.Y. 1999), quoting Robins v. Max Mara. U.S.A. Inc., 923 F. Supp. 460, 472 Page 4 (S.D.N.Y. 1996) (alteration in original). A motion for reconsideration may also be granted "to correct a clear error, or prevent manifest injustice." Virgin Atlantic Airways. Ltd, v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992). A 59(e) motion may also be granted in light of the availability of new evidence. Id. Under Rule 59(e), a court's decision whether to grant a new trial is committed to the discretion of the trial judge. See McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983).

  Similarly, Rule 60(b) of the Federal Rules of Civil Procedure allows for relief from judgment in the case of "(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence . . .; (3) fraud . . . misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, . . .; or (6) any other reason justifying relief from the operation of the judgment." Fed.R.Civ.P. 60(b); Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986). A motion under Rule 60(b) is addressed to the discretion of the trial court, and "should be broadly construed to do substantial justice, yet final judgments should not be lightly reopened." Id. (citations omitted).

 II. Exhaustion of Administrative Remedies

  The Court adheres to its prior ruling that the PLRA requires exhaustion of the federal remedy. The PLRA provides, in relevant part: "No action shall be brought with respect to prison conditions under-any federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative procedures as are available are exhausted." 42 U.S.C. § 1997e(a). While exhaustion of the DOJ remedy is not a prerequisite to a private right of action for the public at large under the ADA, See Page 5 28 C.F.R. § 35.172, App. A., the PLRA imposes such an exhaustion requirement on prisoners. See Porter v. Nusslem, 534 U.S. 516, 523 (2002).

  Plaintiffs argument that the PLRA requires exhaustion only of internal prison procedures is without merit. Plaintiff is correct that most courts, including this one, have focused on the three-step inmate grievance procedure when discussing exhaustion requirements. See 7 N.Y. Comp. Codes R. & Regs. tit. 7, § 701.7 (setting out the three-step procedure); McCoy v. Goord, 255 F. Supp.2d 233, 246 (S.D.N.Y. 2003); Kendall v. Kittles, No. 03 Civ. 628 (GEL), 2003 WL 22127135, at *3 (S.D.RY. Sept. 15, 2003). However, the fact that the majority of prisoner complaints can be exhausted through the internal procedure does not preclude the addition of further compulsory steps for other types of complaints. A remedy exists as a matter of law where the "administrative officers have authority to take some responsive action with respect to the type of allegations . . . raise[d]." See Booth v. Churner, 532 U.S. 731, 736 n.4 (2001). In this case, DOJ clearly has authority to take some form of action. The statute's implementing regulations, which direct the agency to "investigate each complete complaint, attempt informal resolution, and if resolution is not ...

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