The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
Plaintiff, Joshua Liner, formerly an inmate in the custody of the New
York State Department of Correctional Services ("DOCS"), commenced this
action pro se under 42 U.S.C. § 1983 on February 25, 1999,
against several DOCS employees and supervisory officials in connection
with two incidents that occurred at Attica Correctional Facility,
Plaintiff alleges that Corrections Officer J. Stanton assaulted him on
February 2, 1998 in violation of his Eighth Amendment rights. Plaintiff
also asserts that Corrections Officers R. Nutty, R. Bridger, L. Williams,
and John Doe #1*fn1 violated
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his First, Eighth, and Fourteenth Amendment rights by assaulting
him on October 9, 1998, filing false misbehavior reports against him, and
conspiring to retaliate against him for filing a previous lawsuit against
Attica officials. Plaintiff claims that Corrections Sergeant Wright was
present for (but did not participate in) the October assault and failed
to intervene to protect him. Finally, plaintiff asserts claims against
former Attica Superintendent Walter Kelly and DOCS Commissioner Glenn
Goord for failure to protect based on letters plaintiff sent to them
complaining of alleged misconduct by Attica personnel in 1998,
Defendants have moved for summary judgment on the ground that plaintiff
has failed to exhaust his administrative remedies, as required by the
Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), and the
Supreme Court's decision in Porter v. Nussle, 534 U.S, 516
(2002). Defendants Kelly and Goord argue that summary judgment is
warranted for the additional reason that they lacked personal involvement
in the alleged constitutional violations. Dkt. #47.
For the reasons set forth below, defendants' motion is granted in part
and. denied in part, and the claims against Goord and Kelly are
dismissed.
I. Exhaustion of Administrative Remedies
Section 1997e(a) provides that "[n]o action shall be brought with
respect to prison conditions under [section 1983] of this title, or any
other Federal law, by a prisoner confined in any jail, prison,
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or other correctional facility until such administrative remedies
as are available are exhausted," New York State regulations provide for a
three-step administrative review process. See 7 N.Y.C.R.R. §
701, 7. First, "an inmate must submit a complaint to the Grievance Clerk
within 14 calendar days of an alleged occurrence. . . ." 7
N.Y.C.R.R. § 701.7(a)(1). The grievance is then submitted to the
inmate grievance resolution committee ("IGRC") for investigation and
review. If the IGRC's decision is appealed, the inmate may appeal to the
superintendent of the facility, and if the superintendent's decision is
appealed, the Central Office Review Committee ("CORC") makes the final
administrative determination. See 7 N, Y.C.R.R. § 701, 7. In
general, it is only after exhausting all three levels of the
administrative review that a prisoner may seek relief pursuant to
42 U.S.C. § 1983 in federal court. Neal v, Goord, 267 F.3d 116,
122 (2d Cir. 2001); Santos v. Hauck, 242 F. Supp., 2d 257
(W.D.N.Y. 2003).
However, there is an alternative procedure available to an inmate who,
like plaintiff, claims that he was harassed by corrections officers.
See 7 N.Y.C.R.R. § 701.11. The inmate "should first report
such occurrences to the immediate supervisor of [those] employee[s]." 7
N.Y.C.R.R. § 701.11(b)(1). The inmate's complaint must be given, a
grievance number and recorded in sequence. 7 N.Y.C.R.R. § 701.1
l(b)(2). Thereafter, the superintendent must determine whether, if true,
the grievance would represent a bona fide case of harassment, 7
N.Y.C.R.R. § 701.11(b)(3). If the superintendent determines that the
grievance does not represent a bona fide case of harassment, then the
grievance is submitted to the IGRC for resolution in conformance with the
usual IGP procedure found in Section 701.7, outlined above. Id.
If the superintendent finds that the grievance is a
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harassment issue, he shall either initiate an internal
investigation or request an investigation at the State level. 7
N.Y.C.R.R. § 701.11(b)(4).
The Second Circuit has held "that under the administrative scheme
applicable to New York prisoners, resolution of an inmate's grievances
through informal channels can satisfy the exhaustion requirement of
42 U.S.C. § 1997e(a)," Ortiz v. McBride, 323 F.3d 191, 194 (2d
Cir. 2003) (citing Marvin v. Goord, 255 F.3d 40, 43 n. 3 (2d Cir.
2001) (per curiam)); see also Richardson v, Goord, 347 F.3d 431,
434-35 (2d Cir. 2003) (question of fact precluded summary judgment
regarding whether plaintiff's informal efforts to exhaust his
administrative remedies was sufficient to satisfy PLRA).
I find that defendants have not met their initial burden of proving
that plaintiff failed to exhaust his administrative remedies. In support
of their motion, defendants filed the affidavit of Thomas G. Eagen, the
Director of the Inmate Grievance Program, Eagen states that CORC has no
record or indication that plaintiff filed any appeals with CORC from
grievances he filed at Attica in 1998 regarding the claims he asserts in
this lawsuit. Dkt. #52. Relying solely on this fact, defendants argue
that they are entitled to summary judgment on the issue of exhaustion.
However, on the record before me, I cannot make this determination as a
matter of law.
With respect to the February 1998 incident, it is undisputed that
plaintiff wrote to Superintendent Kelly complaining about the alleged
assault, Dkt. #51, Ex. B. Further, the record shows that Kelly referred
the matter for an investigation at the facility level. Plaintiff and
Officer Stanton were interviewed, and DOCS officials prepared written
statements and investigative reports
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concerning the incident. Dkt. #51, Exs, I, J, K, and L. It
appears, then, that plaintiff grieved the alleged assault through the
procedure outlined in 7 N.Y.C.R.R. § 701, 11.
What is not clear, and what the defendants have failed to show, is that
Kelly treated plaintiff's complaint as a "grievance" in accordance with
the regulations. Irrespective of whether plaintiff filed a grievance
pursuant to section 701.7 or 701.11, Kelly was required to respond to it
within twelve days, explain the basis for his decision, inform, plaintiff
of his right to appeal, and provide simple instructions on how to appeal.
See 7 N.Y.C.R.R. §§ 701.7(b)(6); 701.11(b)(5). In support of
the motion, defendants have failed to file Kelly's response to plaintiffs
grievance, and there is no other evidence that plaintiff received a
response, or was informed of his right to appeal.
Therefore, an issue of fact exists regarding what occurred at Attica
with respect to plaintiffs grievance which precludes summary judgment at
this time. See Morris v. Eversley, 205 F. Supp.2d 234, 240-41
(S.D.N.Y. 2002) (plaintiff exhausted her administrative remedies through
informal channels by writing letter to Superintendent, who failed to
comply with procedures set forth in 7 N.Y, C.R.R, § 701.11);
Arnold v, Goetz, 245 F. Supp.2d 527, 537 (S.D.N, Y. 2003) ("an
inmate's technical failure to exhaust administrative remedies before
commencing a § 1983 action may be excused where officials prevented
him from utilizing a grievance procedure"). It may be that Kelly fully
complied with the requirements of the ...