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United States District Court, S.D. New York

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 achieved, issue to the complainant and the public entity a Letter of Findings," 28 C.F.R. § 35.172(a), clearly authorize the DOJ to receive, review, and act on complaints alleging ADA violations. See also 28 C.F.R. § 35.170(a), 35.171(a) (outlining (a) (outlining complaint procedures).

  Plaintiff raises no legal argument requiring departure from the Court's prior determination that the PLRA demands exhaustion of ADA claims. Porter v. Nussle, 534 U.S. 516 (2002), cited by plaintiff, is not to the contrary. (See P. Mem. at 9.) In that case, the Supreme Court explained that, "Congress enacted 1997e(a) to reduce the Page 6 quantity and improve the quality of prisoner suits; to this purpose, Congress afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case." Porter, 534 U.S. at 524-25. This statement is consistent with this Court's original determination that the PLRA exhaustion requirement is inclusive of the federal DOJ remedy. Burgess, 2003 WL 21983006, at *3. Requiring prisoners to file their complaints with DOJ fulfills Congress's intent because it would either provide prison officials more time to address complaints, or possibly lead to negotiation or investigation by DOJ to secure compliance. If the matter can be resolved without recourse to the federal courts, either through internal grievance procedures or through DOJ intervention, then the purpose of judicial economy is fulfilled. See Porter, 534 U.S. at 528; Booth v. Churnerm, 206 F.3d 289, 295 (3d Cir. 2000), aff'd 532 U.S. 731 (2001). Therefore, based on the statutory language and intent, DOJ regulations establish an administrative remedy for plaintiffs claim as a matter of law.

 III. Availability of Remedy

  A. Applicable Law

  In Booth v. Churner, 532 U.S. 731 (2001), the Supreme Court held that the PLRA requires administrative exhaustion regardless of whether the administrative remedy actually provides the type of relief the complainant seeks. In that case, the plaintiff sought money damages under 42 U.S.G. § 1983 for a violation of his Eighth Amendment rights. The Court upheld the Third Circuit's ruling that the plaintiff was required to exhaust administrative remedies through the state's grievance procedure, even though the procedure did not provide for money damages. In reaching this conclusion, the Court relied on the fact that Congress had amended the statute to remove the requirement that Page 7 an administrative remedy be "effective," reversing the Court's prior interpretations of the statute. Id. at 740-41. The exhaustion requirement is thus a strict one.

  In giving substance to the requirement of exhaustion, however, courts have recognized that the requirement that remedies be "available" may soften the impact of a bright line rule. See 42 U.S.C. § 1997e. As the Supreme Court recognized in Booth. "the modifier `available' requires the possibility of some relief for the action complained of." Booth. 532 U.S. at 738; see also Snider v. Melindez, 199 F.3d 108, 114 (2d Cir. 1999) ("A court may not dismiss for failure to exhaust administrative remedies unless the court determines that such remedies are available."). Courts have held that remedies are not available where prisoners are not informed of their existence. See Arnold v. Goetz 245 F. Supp.2d 527, 538 (S.D.N.Y. 2003) ("[A]n institution keeps an inmate ignorant of the grievance procedure when correctional officials either fail to inform him of the procedure altogether or fail to provide him with access to materials which could otherwise educate him about use of that process"); see also Davis v. Milwaukee County, 225 F. Supp.2d 967, 976 (E.D. Wis. 2002) (absence of materials about the grievance procedure at jail prevented the inmate from knowing how to exhaust his administrative remedies and thereby interfered with his access to the courts); Hall v. Sheahan, 2000 C. 1649, 2001 WL111019, at *2 (N.D. Ill., Feb. 2, 2001) ("A grievance procedure that is not made known to inmates is not an `available' administrative remedy").

  While the existence of a remedy is a matter of law, Snider, 199 F.3d at 114, courts in this District treat the question of whether an administrative remedy is available as a mixed question of law and fact. See, e.g. Arnold,* 245 F. Supp.2d at 538 ("[W]hen an inmate claims ignorance of the grievance procedure, it becomes a question of fact Page 8 whether the grievance procedure was an available administrative remedy he was required to exhaust." (citations omitted)): Kendall v. Kittles, No. 03 Civ. 628, 2003 WL 22127135, at *5 (S.D.N.Y. Sept 15, 2003) (holding that whether an administrative remedy was available to a prisoner who claimed that he was refused grievance forms by prison officials was a question of fact to be decided on summary judgment or at trial); Alvarez v. United States, No. 98 Civ. 3179, 2000 WL 555738 at *2 (S.D.N.Y. May 8, 2000) (noting that a showing that a prisoner was not "meaningfully informed" of administrative remedies could establish that they were not available), on reconsideration. No. 98 Civ. 3179, 2000 WL 679009 (S.D.N.Y. May 24, 2000). Because exhaustion of remedies is an affirmative defense, defendants bear the burden of proving that the DOJ remedy is available to prisoners. Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir. 1999). See Stevens v. Goord, No. 99 Civ. 11669 (LMM), 2003 WL 21396665, at *5 (S.D.N.Y. June 16, 2003).

  B. Plaintiffs New Evidence

  In support of his argument that the DOJ remedy is unavailable to prisoners, plaintiff advances two arguments based on evidence that was not before the Court upon consideration of defendants' summary judgment motion. Plaintiff first offers two DOJ response letters to prisoner complaints of disability-based discrimination. (Ginsberg Decl. Ex. B.) In these letters, the Disability Rights Section of the DOJ indicates that due to its "limited resources" and the "large number of complaints" it receives, DOJ does not investigate individual prisoner complaints except as a part of a review of the entire State prison system. (Id.) Defendants admit that another such "limited resources" is the most likely of a complaint to DOJ. (D. Mem. at 6.) Page 9

  Such a letter, if it is indeed the inevitable response, may not constitute an effective remedy — indeed, it indicates that attempting to obtain relief through DOJ channels may be entirely fufile. However, Supreme Court precedent is clear that the match between the remedies available through a designated complaint procedure and the relief sought are immaterial to the PLRA's exhaustion requirement. See Booth, 532 U.S. at 739. As the Court emphasized, "we will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise. . . . Congress has provided in § 1997e(a) that an inmate must exhaust irrespective of the forms of relief sought and offered through administrative avenues." Id. at 741 n.6 (citations omitted). In addition, while DOJ's letters indicate that the agency does not investigate individual claims, they also state that it does perform investigations into prison conditions at a statewide level. Such an investigation, should it occur, holds the "possibility of some relief for the plaintiff, however slim. Id.. 738.*fn2 The "no action" letters plaintiff relies on therefore make no difference to the outcome on the requirement of exhaustion.

  Plaintiffs second argument, however, raises serious questions about the availability of the remedy and requires the Court to reverse its prior ruling on defendants' summary judgment motion. According to plaintiff, the information that New York prisoners are provided on ADA grievance procedures includes no mention of the DOJ procedures: "[b]oth the DOCS directive concerning the reasonable accommodations procedure as well as the poster that DOCS uses to notify prisoners of their rights under Page 10 the ADA mention only the internal DOCS procedures for filing complaints about ADA violations." (P. Reply at 9; Ginsberg Decl. Supp. P. Reply Exs. A & B.) If, as plaintiff asserts, these procedural channels are not made known to prisoners, they are not an "available" remedy in any meaningful sense; however firm Congress may have been in its resolve to reduce meritless complaints and promote administrative resolution of claims, it cannot have meant that prisoners would be expected to exhaust remedies of which they were kept entirely ignorant. And if, as defendants argue, the DOJ procedures are "an integral part of the statutory scheme to implement the ADA" (D. Mem. at 9), then there would be no justification for keeping prisoners ignorant of them, and even less justification for raising an exhaustion defense if the State does so. See Hall 2001 WL 111019, at *2 ("An institution cannot keep inmates in ignorance of the grievance procedure and then fault them for not using it.").

  Plaintiffs new evidence has thus brought to light an issue of fact, of which the Court was unaware when it granted summary judgment, as to whether plaintiff had notice of these procedures. Although discovery in this case was complete at the time of that decision, plaintiff, pro se, did not take discovery on the issue of notice because he was unaware that exhaustion of the DOJ remedy would be an issue until defendants filed their Motion for Summary Judgment., The Court will therefore reverse its prior decision granting summary judgment for defendants and reopen the plaintiffs case in order to permit additional discovery on this limited issue.


  For the above reasons, the Court grants plaintiffs motion to reconsider, denies defendants' motion for summary judgment, and reopens discovery to afford the parties an Page 11 opportunity to explore the limited issue of whether information on the DOJ complaint procedure for ADA claims was made available to the plaintiff. The parties are directed to complete discovery on this issue by Friday, June 18, 2004, and to attend a subsequent conference on that date at 11:30 am


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