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.
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
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 ...