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.
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
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,
(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
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 ...