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.
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