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April 13, 2004.

J. CASSLEBERRY, et al., Defendants

The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District


Plaintiff, Victor Keven Thomas, appearing pro se, filed the complaint in this civil rights action on May 3, 2002. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), alleges that on May 1, 1999, while plaintiff was confined at Southport Correctional Facility, defendant, James Casselberry, a correctional officer at Southport, assaulted plaintiff, after which Casselberry allegedly issued plaintiff a false disciplinary ticket. Plaintiff alleges claims under the Eighth and Fourteenth Amendments to the United States Constitution, pursuant to 42 U.S.C. § 1983,

Defendant has moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, on the ground that plaintiff has not exhausted his administrative remedies as required by the Prisoner Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), For the reasons that follow, defendant's motion is granted. STATUTORY FRAMEWORK

  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, 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 1 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, 259 (W.D.N.Y. 2003).

  At the time of the alleged assault, the Court of Appeals for the Second Circuit had not yet ruled upon the issue of whether an inmate was required to exhaust his administrative remedies before bringing a claim for excessive force under § 1983. A year after the alleged assault, the Second Circuit held that the PLRA's exhaustion requirement did not apply to claims pertaining to isolated incidents affecting particular inmates. See Nussle v. Willette, 224 F.3d 95 (2d Cir. 2000) ("Nussle"), The Supreme Court reversed the Second Circuit's decision in Nussle on February 26, 2002, holding that "§ 1997e(a)'s exhaustion, requirement applies to all prisoners seeking redress for prison circumstances or occurrences." Porter v. Nussle, 534 U.S. 516, 520 (2002) ("Porter").


  On his form complaint, plaintiff answered "Yes" to the following question: "[D]id you present the facts relating to your complaint in [the prisoner] grievance program?" He stated that he "filed two grievances & investigated by Inspector Gen." He also stated that the grievance was "denied as not timely and/or not grievable issue." Complaint at 2.

  Even though he answered "Yes" to that question, however, plaintiff answered the following question:
If your answer to 4(b) is NO:
Why did you choose to not present the facts relating to your complaint in the prison's grievance program?
Plaintiff answered, "at the time issue was not availabe [sic] thru procedures." Complaint at 3.

  In addition, although plaintiff had stated that there was a grievance procedure at Southport, he answered "Yes" to the following question; "If there is no grievance procedure in your institution, did you complain to prison authorities about the facts alleged in your complaint?" Plaintiff stated that he "wrote Inspector General's office for interview w/ I.G. McCormick," and that the final result was "willing to be called as a witness to the events." Complaint at 3. DISCUSSION

  By his own admission, plaintiff did not timely file a grievance concerning the alleged assault. Plaintiff does not state exactly when he did eventually file a grievance, but he does state that this "was a step taken only to insure that the exhaustion requirement was attempted and it was at that time that no grievance was necessary to file a [sic] assault claim," Plaintiff's Response to Defendants' Motion (Docket #28) ¶ 5.

  Viewing the record in the light most favorable to plaintiff, the non-moving party, it appears that he filed a grievance about the alleged assault only after the Supreme Court declared in Porter that all inmate claims relating to prison conditions or events are subject to the exhaustion requirement, That does not satisfy the PLRA's exhaustion requirement.

  First, the law in this circuit is established that Porter's, exhaustion requirement applies retroactively. See Webb v, Goord, 340 F.3d 105, 112 (2d Cir. 2003), cert. denied, ___ U.S. ___, 124 S.Ct. 1077 (2004); Lawrence v. Goord, 304 F.3d 198, 200 (2d Cir. 2002) (per curiam). Second, this is not a case where the plaintiff detrimentally relied upon the Second Circuit's holding in Nussle, before it was reversed in Porter. Cf. Jenkins v, Raub, ___ F. Supp.2d ___, 2004 WL 614562, at *4 n.2 (W.D.N. Y. Feb. 9, 2004) (noting that "at all times relevant to this lawsuit [i.e., in 1991], the law in this circuit was that plaintiff was not required to exhaust his administrative remedies before bringing a claim for excessive force under § 1983").

  Rather, since the alleged assault here occurred before Nussle was decided, plaintiff could not have relied upon it to his detriment. Under these circumstances, "[c]ourts in this Circuit have repeatedly rejected this argument and held that claims filed prior to the Court's decision in. Nussle must meet the exhaustion requirements." Evans v. Jonathan, 253 F. Supp.2d 505, 507 n. 2 (W.D.N.Y, 2003); see, e.g., Santo's, 242 F. Supp.2d at 260; Espinal v. Goord, No, 01 Civ. 6569, 2002 WL 1585549, at *2 n. 3 (S.D.N.Y, July 17, 2002) ("the broad exhaustion requirement announced in [Porter] applies with full force" to litigants who filed complaints before Porter was decided); Hemphill v. New York, 198 F. Supp.2d 546, 550 (S.D.N.Y. 2002) (noting that "the equities here would not favor Hemphill" because his claims arose before the Second Circuit's decision in Nussle); Byas v. State, No, 99 Civ. 1673, 2002 WL 1586963 (S.D.N.Y. July 17, 2002) (plaintiff's complaint dismissed where he filed institutional grievance five years after the incident and three years after commencement of the lawsuit). Since plaintiff has not shown any reason why the untimeliness of his grievance should be excused, he has not satisfied the PLRA's exhaustion requirement.

  Plaintiff also contends that the Court should deny defendants' motion because he complained to the DOCS Inspector General's Office. Plaintiff contends that the Court should order defendants to provide plaintiff with discovery about whether ...

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