The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
Plaintiff, Deshawn Smart, 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 April 23, 2001, against
DOCS employees asserting Eighth Amendment excessive force and failure to
intervene claims. In his complaint, plaintiff alleges that defendant D.
Whelan sexually assaulted him on September 1, 1998 at Attica Correctional
Facility during a routine pat frisk, and that defendants K. Ulrich and
Sgt. K. Arnone failed to intervene to stop the assault. (Dkt. #1).
Defendants have now moved to amend their answer to assert failure to
exhaust administrative remedies as an affirmative defense, and for
summary judgment on that same basis. (Dkt. #16).
Defendants' motions are granted and plaintiff's complaint is dismissed.
I. Amendment of Defendants' Answer
Defendants' motion to amend their answer to add the affirmative defense
of failure to exhaust administrative remedies is granted. Leave to amend
a pleading pursuant to Fed.R.Civ.P. 15(a) should be freely granted
when justice so requires. "Thus, absent evidence of undue delay, bad faith or dilatory motive on the part of the movant, undue prejudice
to the opposing party, or futility, Rule 15's mandate must be obeyed."
Monahan v. New York City Dep't of Corr., 214 F.3d 275, 283 (2d
There is no evidence here that defendants made this motion in bad faith
or for an improper purpose. Rather, defendants moved to amend based on a
change in the law caused by the United States Supreme Court's decision in
Porter v. Nussle, 534 U.S. 516 (2002), which was decided after
defendants filed their original answer. Moreover, plaintiff has not
addressed the motion to amend in his response and, therefore, has not
claimed any prejudice. In light of his pro se status, however, I
have examined the record and determined that there is no prejudice.
Plaintiff has conducted discovery on the issue of exhaustion of
administrative remedies. He has requested and defendants have disclosed
plaintiff's grievance file relative to his claims here. (See
Defendants' response to plaintiff's interrogatories and request for
production of documents, Dkt. #14, with attached exhibits). Finally, as
discussed below, the amendment is not fufile. Accordingly, defendants'
motion to amend to add the defense is granted. Monahan, 214 F.3d
at 284; Rachman Bag Co. v. Liberty Mut. Ins. Co., 46 F.3d 230,
235 (2d Cir. 1995).
II. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 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, 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. First, "[a]n 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, only upon exhaustion
of these three levels of review may a prisoner seek relief pursuant to
42 U.S.C. § 1983 in federal court. Porter v. Nussle,
534 U.S. 516 (2002); Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001);
Santos v. Hauck, 242 F. Supp.2d 257 (W.D.N.Y. 2003).
In support of their motion, defendants filed copies of grievance
documents that establish that plaintiff filed Grievance A-37600-98 on
September 18, 1998, concerning the incident with IGRC, which was
forwarded to Attica's Superintendent for investigation and response.
(Dkt. #18, Ex. B). On October 5, 1998, after an internal investigation,
the Superintendent sent plaintiff a response denying the grievance.
Id. The Superintendent's response explains the basis for his
decision and contains an appeal statement at the bottom informing
plaintiff of his right to appeal and providing instructions as to how to
do so. Id.
Defendants also filed the affidavit of Thomas G. Eagen, the Director of
the Inmate Grievance Program. Eagen states that CORC has no record that
plaintiff filed an appeal with the CORC from Grievance A-37600-98. (Dkt.
#19). This is consistent with the grievance documents from the facility,
which show that the appeal statement portion of the Superintendent's
response was never completed. In light of this evidence, defendants have
met their initial burden of proof that plaintiff failed to exhaust his
Construing plaintiff's pro se responses liberally and
interpreting them "to raise the strongest arguments that they suggest,"
see Corcoran v. New York Power Auth., 202 F.3d 530, 536 (2d Cir.
1999) (quotations omitted), I find that plaintiff has failed to raise an
issue of fact regarding the exhaustion requirement. Plaintiff does not allege in his complaint
that he appealed to the CORC or assert that his efforts to exhaust his
remedies were hampered in any manner. (Dkt. #1). In fact, plaintiff does
not dispute that he never appealed the denial of his grievance to the
CORC, and he does not offer any explanation for not having done so. Nor
has he asserted any basis for equitable relief. Instead, plaintiff's
motion response addresses only how his allegations of assault state a
claim for relief under the Eighth Amendment. (Dkt. #25).
Defendants' motion to amend the answer and for summary judgment (Dkt.
#16) is granted, and ...