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United States District Court, S.D. New York

April 13, 2004.

DIALLO RAFIK ASAR MADISON, Plaintiff; -against- LESTER N. WRIGHT, Associate Commissioner, Health Services, et al., Defendants

The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge


Defendants Chief Medical Officer Lester Wright ("Wright"), Superintendent William Mazzuca ("Mazzuca"), Deputy Superintendent D. Schraram ("Schramm"), Superintendent David Miller ("Miller"), Dr. Mikhail Guzman ("Guzman"), Nurse Riley ("Riley"), Superintendent Michael McGinnis ("McGinnis"), and Dr. Alves (*Alves") have moved to dismiss the complaint filed by pro se plaintiff Diallo Madison ("Madison") on several grounds, among which is that Madison has failed to exhaust his administrative remedies as required by the Prisoner Litigation Reform Act, 42 U.S.C. § 1997e(a). Upon review of the defendants' moving papers, it appears that the exhaustion issue may be dispositive of the claims against several of the defendants. The question of exhaustion should therefore be determined before the merits of the complaint are addressed. The failure to exhaust administrative remedies is considered by the Second Circuit to be an affirmative defense. See Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir. 1999). Because the defendants bear the burden of showing non — exhaustion, the "issue of exhaustion is generally not amenable to resolution by way of a motion to dismiss. Rather, the defendants must present proof of non — exhaustion." Nicholson v. Murphy, No. 302CV1815, 2003 WL 22909876, at *6 (D. Conn. June 16, 2003). "An exception to this rule is that a court may dismiss a complaint where failure to exhaust under the PLRA is "readily apparent' or `unambiguously established in the record,' as long as the court provides plaintiff with notice and an opportunity to be heard on the issue." Foreman v. Comm. Goord, 02 Civ. 7089, 2004 WL 385114, at *6 (S.D.N.Y. Mar. 2, 2004) (quoting Snider v. Melindez, 199 F.3d 108, 111-14 (2d Cir. 1999)).

While Madison's amended complaint makes reference to the grievances that he filed, and even quotes from several grievances, it cannot be "unambiguously established" from the complaint that Madison has failed to exhaust. As in Foreman, Madison's "complaint alleges full exhaustion in general terms and provides some details of compliance with the required grievance procedures." Foreman, 2004 WL 385114, at *6. In his affidavit in opposition, Madison has attached copies of several relevant grievances in support of his claim that he has exhausted his administrative remedies. However, Madison has not provided the supporting documentation for all grievances referenced in his complaint.

  Under the circumstances, where nonexhaustion is


not clear from the face of the complaint, a defendant's motion should be converted, pursuant to Rule 12(b), to one for summary judgment limited to the narrow issue of exhaustion and the relatively straightforward questions about the plaintiff's efforts to exhaust, whether remedies were available, or whether exhaustion might be, in very limited circumstances, excused.
Scott v. Gardner. 287 F. Supp.2d 477, 485 (S.D.N.Y. 2003) (quoting McCoy v. Goord. 255 F. Supp.2d 233, 248 (S.D.N.Y. 2003)); see also Dawkins v. Jones. 03 Civ. 0068, 2004 WL 574726, at *1 n.2 (S.D.N.Y. Mar. 22, 2004) (citing cases).

  Accordingly, defendants' motion to dismiss is denied without prejudice to renewal by April 26, 2004 as a combined motion for summary judgment, solely on the issue of exhaustion, and to dismiss pursuant to Rule 12(b) (6). Madison shall have until May 5, 2004 to file opposition papers and defendants until May 12, 2004 to file reply papers.

  "Defendants' moving papers should include an affidavit (s) providing necessary information to decide the exhaustion issue, and [should] specifically include copies of [Madison's] grievances, as well as the prison's responses, appeals, etc.". Dawkins, 2004 WL 574726, at *1. Defendants shall also serve on Madison a copy of the "Notice to Pro Se Litigants Opposing Summary Judgment"* as provided by Local Civil Rule 56.2.

  It is so ordered.


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