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March 25, 2004.

JOSHUA LINER, Plaintiff,
GLENN S. GOORD, et al, Defendants

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 Page 2 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, Page 3 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 Page 4 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 Page 5 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 ...

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