United States District Court, S.D. New York
April 26, 2004.
WILMER WILLIAMS, Plaintiff, -against- THE UNITED STATES OF AMERICA, GLENN CARRINO, BRIAN WESMAN, BOLIVAR FLORES, ALEX PASTOR, ANTUANE HAWKINS, DERRICK MEBANE, sued individually and in their official capacities, Defendants
The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge
OPINION AND ORDER
This is a civil rights action brought by a former federal pretrial
detainee alleging that excessive force was used against him by Bureau of
Prison authorities at the New York Metropolitan Correction Center
("MCC-NY"). All parties have consented to my exercising plenary
jurisdiction pursuant to 28 U.S.C. § 636(c). Defendants move to dismiss
the Second Amended Complaint*fn1 and for summary judgment on a variety of grounds.
For the reasons set forth below, defendants' motion is granted.
Most of the events in issue have been recorded on a videotape made by
Bureau of Prisons personnel, a copy of which has been submitted by
defendants in connection with the present motion. Plaintiff makes no
claim that the videotape is inaccurate or has been edited, and my
statement of the facts is based principally on what is depicted on the
On June 14, 2002, two inmates were engaged in a fight on Unit 9 North,
and several members of the MCC staff, including Special Investigative
Agent Glenn A. Carrino, responded. The videotape shows an unidentified
member of the MCC staff attempted to hold plaintiff against the wall, but
plaintiff kept taking his hands off the wall, and gesturing toward
another inmate stating "He didn't have nothin' to do with it, nothin'."
An unidentified individual then yelled "Nothin' there, gotta couple more,
gotta couple more, that ain't it." Then plaintiff stated "Rats don't run
nothin'! Fuckin' coward. And don't come to Brooklyn and threaten that shit you motherfuckers know where [inaudible]." Although an
unidentified guard repeatedly attempted to hold plaintiff's hands against
the wall, plaintiff-kept taking his hands off the wall, repeatedly
gesturing towards another inmate and stating "Rats don't run nothin'."
Two guards in addition to an individual in a gray shirt and tie (who I
assume is Special Investigative Agent Carrino) then converged on
plaintiff, pinned him against the wall and pulled his arms behind his
back in an apparent effort to handcuff plaintiff. After plaintiff's arms
were behind his back, at least two more guards converged on plaintiff,
and plaintiff either fell or was pushed to the floor. It is impossible to
tell from the videotape whether plaintiff was resisting being handcuffed;
his hands are obscured by prison guards. Plaintiff did not say anything
and there were no visible attempts to gesture immediately before he wound
up on the floor.
After he was on the floor, plaintiff struggled with four or five
guards. It appears that petitioner was initially on his stomach, was then
on his back and was. then rolled back onto his stomach. At one point, his
arm can be seen flailing, and, although it is not entirely clear, it
appears that he was resisting. While plaintiff and the guards were on the
floor, an unidentified voice repeatedly stated "Calm down, man;" it is
impossible to tell from the videotape whether a guard or another inmate
was making this statement. While he is on the floor, petitioner yells "My asthma pump, my asthma pump. I can't breath.
Hey, give me my asthma pump."
Approximately forty seconds after he hit the floor, plaintiffs' hands
were cuffed behind his back and his ankles were chained. Plaintiff was
then lifted by three guards (one at each shoulder and one at the ankles)
and carried from the area and up a flight of stairs in a face down
position with his head first. At one point while he is being carried,
plaintiff turned towards the camera and said, "Could you all get my
asthma pump?" He did not appear to be in respiratory distress when he
made this statement; he was not gasping nor was he wheezing or short of
Petitioner and the three guards carrying him approached a large dark
door. As they reach the door, a loud thud is heard, and the guards'
movement stopped. Plaintiff claims that the guards carrying him
intentionally rammed his head into the door. The videotape shows the
incident from the rear and it is impossible to tell from the videotape
what caused the thud, whether plaintiff's head made contact with the door
or whether the thud even came from the door. Nevertheless, the images on
the videotape are not inconsistent with and do not disprove plaintiff's
contention that his head was deliberately rammed in to the door.
Approximately four seconds after the thud, the door opened and plaintiff
was carried through the doorway. The elapsed time from the commencement of the video tape through the
point at which plaintiff is carried through the door is approximately 97
There appears to be no dispute that plaintiff suffered a wound to his
head in the course of his altercation with the guards and that the wound
required four stitches.
Based on the foregoing, plaintiff alleges a claim against the
individual defendants for excessive force and a claim against the United
States for assault and battery under the Federal Tort Claims Act
("FTCA"); all other claims that are asserted or suggested in plaintiff's
initial complaint have been withdrawn (Plaintiff's Memorandum of Law in
Opposition to Defendants1 Motion for Summary Judgment, dated April 3,
2003, at 2). Plaintiff claims that he was unnecessarily knocked down,
that excessive force was used against him while he was on the floor and
that the guards carrying him after he was handcuffed deliberately rammed
his head into a door. Defendants move to dismiss for lack of subject
matter jurisdiction or, in the alternative, for summary judgment.
A. Subject Matter Jurisdiction
1. Applicable Standards
The standards to be applied in assessing a motion to dismiss for lack
of subject matter jurisdiction have been set forth by the Honorable Denise L. Cote, United States District Judge, in
Cromer Fin. Ltd, v. Berger, 137 F. Supp.2d 452, 467 (S.D.N.Y. 2001):
In assessing a motion to dismiss for lack of subject
matter jurisdiction, a court must "accept as true all
material factual allegations in the complaint,"
Shipping Fin. Serv. Corp. v. Drakos, 140 F.3d 129, 131
(2d Cir. 1998) (citing Scheuer v. Rhodes, 416 U.S. 232,
236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)), but refrain
from "drawing from the pleadings inferences favorable
to the party asserting [jurisdiction]." Id. (citing
Norton v. Larney, 266 U.S. 511, 515, 45 S.Ct. 145,
69 L.Ed. 413 (1925)). Courts evaluating Rule 12(b)(1)
motions "may resolve the disputed jurisdictional fact
issues by reference to evidence outside the
pleadings, such as affidavits." Zappia Middle East
Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253
(2d Cir. 2000). Where jurisdiction is "so intertwined
with the merits that its resolution depends on the
resolution of the merits," the court should use the
standard "applicable to a motion for summary judgment"
and dismiss only where "no triable issues of fact"
exist. London v. Polishook, 189 F.3d 196, 198-99 (2d
Cir. 1999) (citation omitted); see also Europe and
Overseas Commodity Traders, S.A. v. Banque Paribas
London, 147 F.3d 118, 121 n.1 (2d Cir. 1998).
See also Makarova v. United States, 201 F.3d 110
, 113 (2d Cir. 2000) ("In
resolving a motion to dismiss for lack of subject matter jurisdiction
under Rule 12(b)(1), a district court . . . may refer to evidence outside
the pleadings. . . . A plaintiff asserting subject matter jurisdiction
has the burden of proving by a preponderance of the evidence that it
exists. . . ." (citations omitted)); Transatlantic Marine Claims Agency,
Inc. v. Ace Shipping Corp., 109 F.3d 105, 108 (2d Cir. 1997) (in
assessing a motion to dismiss for lack of subject matter jurisdiction, Court is not limited to the allegations of the complaint); S.E.C. v.
Princeton Econ. Int'l Ltd., 84 F. Supp.2d 452, 453-54 (S.D.N.Y. 2000).
2. Defendants' Arguments
Defendants contend that the court lacks subject matter jurisdiction
over plaintiff's FTCA claim against the United States for assault and
battery because plaintiff has failed to exhaust administrative remedies
as required by the FTCA.*fn2 See generally McNeil v. United States,
508 U.S. 106, 113 (1993) (filing of an administrative claim is a
jurisdictional prerequisite to FTCA claim); Millares v. United States,
137 F.3d 715, 719 (2d Cir. 1998) (same); Robinson v. Overseas Military
Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (same).
In support of their motion, defendants have submitted a declaration
from Adam M. Johnson, a Staff Attorney of the Bureau of Prisons ("BOP")
assigned to MCC-NY, dated February 13, 2003 ("Johnson Decl."). Mr.
Johnson states that the BOP maintains a computerized and paper database
of administrative tort claims filed by inmates, that he has searched the database and that as a result
of his search he has determined that plaintiff submitted an
administrative tort claim on August 1, 2002 and that that claim was
denied by the BOP on December 3, 2002 (Johnson Decl. ¶¶ 6-7 and Exhibits H
and I thereto).
Title 28, United States Code, Section 2675(a) provides, in pertinent
An action shall not be instituted upon a claim
against the United States for money damages for injury
or loss of property or personal injury or death caused
by the negligent or wrongful act or omission of any
employee of the Government while acting within the
scope of his office or employment, unless the claimant
shall have first presented the claim to the
appropriate Federal agency and his claim shall have
been finally denied by the agency in writing and sent
by certified or registered mail. The failure of an
agency to make final disposition of a claim within six
months after it is filed shall, at the option of the
claimant anytime thereafter, be deemed a final denial
of the claim for purposes of this section.
Section 2675(a) deprives a federal court of subject matter jurisdiction
to entertain an FTCA claim until either six months have elapsed since the
filing of the claim or the agency has issued a final denial of the
claim. Rodriguez v. United States, 02 Civ. 6974 (SHS), 2003 WL 21961121
at *4 (S.D.N.Y. Aug. 14, 2003); Russo v. Glasser, 279 F. Supp.2d 136, 146
(D. Conn. 2003); Nin v. Lao, 02 Civ. 8308 (JCF), 2003 WL 21018816 at *5
(S.D.N.Y. May 5, 2003); Pentagen Tech. Int'l Ltd, v. United States, 01
Civ. 3078 (SHS), 2002 WL 465308 at *3 (S.D.N.Y. Mar. 26, 2002). If an
FTCA action is commenced after the filing of an administrative claim but before either the passage of six months or the
issuance of a final denial, the action must be dismissed for lack of
subject matter jurisdiction notwithstanding the occurrence of one of
these conditions after the commencement of the action. McNeil v. United
States, supra, 508 U.S. at 111-13; Hines v. City of New York, 94 Civ.
5109 (JSM), 1996 WL 706877 at *1 (S.D.N.Y. Dec. 9, 1996).
The Court's docket sheet in this matter indicates that the action was
commenced on August 15, 2002 a mere fourteen (14) days after the
filing of plaintiff's administrative claim and almost four months before
the claim was finally denied. Since plaintiff asserted his FTCA claim
before all the conditions set forth in Section 2675(a) were satisfied,
the claim must be dismissed for lack of subject matter jurisdiction.*fn3 B. The Individual Defendants' Motion for Summary Judgment
1. Summary Judgment Standards
The standards applicable to a motion for summary judgment are
well-settled and require only brief review.
The standard applicable to a motion for summary
judgment . . . is a familiar one. Summary judgment
shall be granted when there is no genuine issue of
material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c). This
form of relief is appropriate when, after discovery,
the party here plaintiff against whom summary
judgment is sought, has not shown that evidence of an
essential element of her case one on which she has
the burden of proof exists. See Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). This form of remedy is inappropriate when the
issue to be resolved is both genuine and related to a
disputed material fact. An alleged factual dispute
regarding immaterial or minor facts between the
parties will not defeat an otherwise properly
supported motion for summary judgment. See Howard v.
Gleason Corp., 901 F.2d 1154, 1159 (2d Cir. 1990).
Moreover, the existence of a mere scintilla of
evidence in support of nonmovant's position is
insufficient to defeat the motion; there must be
evidence on which a jury could reasonably find for the
nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
If the movant demonstrates an absence of a genuine
issue of material fact, a limited burden of production
shifts to the nonmovant, who must "demonstrate more
than some metaphysical doubt as to the material
facts," and come forward with "specific facts showing
that there is a genuine issue for trial." Aslanidis
v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d
Cir. 1993). If the nonmovant fails to meet this
burden, summary judgment will be granted against it.
Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224
(2d Cir. 1994).
Powell v. National Bd. of Med. Exam'rs, Docket No. 02-9385, 2004 WL
739848 at *4 (2d Cir. Apr. 7, 2004). "The party seeking summary judgment
has the burden to demonstrate that no genuine issue of material fact
exists. . . . In determining whether a genuine issue of material fact
exists, a court must examine the evidence in the light most favorable
to, and draw all inferences in favor of, the non-movant. . . . Stated
more succinctly, `[t]he evidence of the non-movant is to be believed.'"
Lucente v. International Bus. Mach. Corp., 310 F.3d 243
, 253-54 (2d Cir.
2002) (citations omitted). See also Dallas Aerospace, Inc. v. CIS Air
Corp., 352 F.3d 775
, 780 (2d Cir. 2003); Hayut v. State Univ. of New
York, 352 F.3d 733
, 743 (2d Cir. 2003); Sologub v. City of New York,
202 F.3d 175
, 178 (2d Cir. 2000); Belfi v. Prendergast, 191 F.3d 129
(2d Cir. 1999); Hemphill v. Schott, 141 F.3d 412
, 415 (2d Cir. 1998);
Grady v. Affiliated Cent., Inc., 130 F.3d 553, 559 (2d Cir. 1997).
Once the moving party meets its initial burden of demonstrating the
absence of a genuine issue of material fact, the non-moving party, in
order to defeat the motion, "must do more than simply show that there is
some metaphysical doubt as to the material facts." Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The
non-moving party "`must set forth specific facts showing that there is a
genuine issue for trial'" in order to avoid summary judgment. Anderson
v. Liberty Lobby. Inc., 477 U.S. 242, 250 (1986), quoting Fed.R.Civ.P. 56(e).
The individual defendants move for summary judgment on three grounds:
(1) plaintiff has failed to exhaust administrative remedies as required
by the Prisoner Litigation Reform Act ("PLRA") 42 U.S.C. § 1997e(a);
(2) plaintiff has failed to state a claim on which relief can be granted,
and (3) the individual defendants are entitled to qualified immunity.
2. PLRA Exhaustion
The PLRA requires that a prisoner seeking to bring a lawsuit under
"any . . . Federal Law" must first exhaust all of his administrative
remedies. See Marvin v. Goord, 255 F.3d 40, 42 (2d Cir. 2001): Johnson
v. Bendheim, 00 Civ. 720 (JSR), 2001 WL 799569 at *4 (S.D.N.Y. July 13,
2001); Grey v. Sparhawk, 99 Civ. 9871 (HB), 2000 WL 815916 at *1
(S.D.N.Y. June 23, 2000).
[The PLRA], which became effective in April
1996, directs inmates complaining about "prison
conditions" to avail themselves of institutional
grievance procedures before filing their claims in
federal court. The statute states in pertinent
"No action shall be brought with a [sic] 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
42 U.S.C. § 1997e(a). Courts have interpreted
the provision to require complete exhaustion in
accordance with institutional procedures. See, e.g., Sulton v. Greiner, 2000 WL
1809284 (S.D.N.Y. Dec. 11, 2000) (granting summary
judgment where prisoner failed to appeal to the
CORC); Petit v. Bender, 2000 WL 303280, at *2-3
(S.D.N.Y. March 22, 2000) (prisoner who only partially
complied with the grievance procedures failed to
exhaust his administrative remedies.); Santiago v.
Meinsen, 89 F. Supp.2d 435 (S.D.N.Y. 2000) (prisoners
must challenge the conditions of their confinement
through the highest level of available administrative
avenues prior to filing suit). This requirement
applies even when plaintiffs seek a remedy that cannot
be awarded by the administrative body hearing the
Graham v. Cochran, 96 Civ. 6166 (LTS) (RLE), 2002 WL 31132874 at *6
(S.D.N.Y. Sept. 25, 2002). See also Vidal v. Gorr, 02 Civ. 5554 (LAK),
2003 WL 43354 at *1 (S.D.N.Y. Jan. 6, 2003); Beatty v. Goord,
210 F. Supp.2d 250, 252-53 (S.D.N.Y. 2000). The exhaustion requirement
"applies to all inmate suits about prison life, whether they involve
general circumstances or particular episodes, and whether they allege
excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516
(2002). The exhaustion requirement does not, however, apply where there
is no grievance procedure available to address the subject matter of a
prisoner's complaint, Mojias v. Johnson, 351 F.3d 606
, 609 (2d Cir.
2003); Snider v. Melindez, 199 F.3d 108
, 113 n.2 (2d Cir. 1999).
A failure to exhaust may be excused where
(1) an inmate was led to believe by prison officials
that his alleged incident was not a "grievance matter"
and assured that his claims were otherwise
investigated. . . . (2) an inmate makes a "reasonable
attempt" to exhaust his administrative remedies,
especially where it is alleged that corrections officers failed to file or otherwise impeded or
prevented his efforts, . . . and (3) the state's time
to respond to the grievance has expired. . . .
O'Connor v. Featherston, 01 Civ. 3251 (HB), 2002 WL 818085 at *2
(S.D.N.Y. Apr. 29, 2002); accord Petit v. Bender, 99 Civ. 0969 (SHS),
2003 WL 22743485 at *6 (S.D.N.Y. Nov. 19, 2003). See also Arnold v.
Goetz, supra, 245 F. Supp.2d at 537 ("In essence, prison officials cannot
have it both ways they cannot obstruct an inmate's pursuit of
administrative exhaustion on the one hand and then claim the inmate did
not properly exhaust these remedies on the other. ")
The Federal Bureau of Prisons ("BOP") has a four-step procedure for the
resolution of prisoner grievances.
The Bureau of Prisons ("BOP") has established a
four-step administrative procedure by which "inmates
may seek formal review of an issue which relates to
any aspect of their confinement . . . if less formal
procedures have not resolved the matter."
28 C.F.R. § 542.10 (1998). . . . The regulations
require that inmates first seek informal resolution of
their complaints. See id. at § 542.13. If the
complaint is not resolved informally, the prisoner may
then submit a formal written request, on a designated
form, to the facility's warden. See id. at § 542.
The deadline for completion of informal review or
filing of a formal complaint is twenty days from the
event giving rise to the grievance. See id. This time
period may be extended " [w] here the inmate
demonstrates a valid reason for delay." See id. at §
542. 14 (b). If an inmate's formal request is denied,
the inmate has twenty days in which to appeal the
decision to the appropriate BOP Regional Director,
again using a particular form designated by BOP. See
id. at S 542. 15(a). Upon an adverse determination by
the Regional Director, the inmate has thirty days in which to appeal to the BOP General Counsel.
Punches v. Reish, 97 Civ. 7611 (LBS), 1998 WL 695904 at *2 (S.D.N.Y.
Oct. 5, 1998); accord Joost v. Menifee, 03 Civ. 1608 (DLC), 2003 WL
22977499 at *2 (S.D.N.Y. Dec. 19, 2003); Paulino v. Garcia, 02 Civ. 209
(LAP), 2003 WL 21939703 at *2 (S.D.N.Y. Aug. 12, 2003); Hylton v. Federal
Bureau of Prisons, CV 00-5747 (RR), 2002 WL 720605 at *2 (E.D.N.Y. Mar.
In addition, where an inmate believes that filing a grievance at the
facility in which he is incarcerated may result in retaliation, the
regulations provide a mechanism by which the inmate can commence the
grievance procedure at the Regional Level:
(d) Exceptions to initial filing at institution
(1) Sensitive Issues. If the inmate reasonably
believes the issue is sensitive and the inmate's
safety or well-being would be placed in danger if the
Request became known at the institution, the inmate
may submit the Request directly to the appropriate
Regional Director. The inmate shall clearly mark
"Sensitive" upon the Request and explain, in writing,
the reason for not submitting the Request at the
institution. If the Regional Administrative Remedy
Coordinator agrees that the Request is sensitive, the
Request shall be accepted. Otherwise, the Request will
not be accepted, and the inmate shall be advised in
writing of that determination, without a return of the
Request. The inmate may pursue the matter by
submitting an Administrative Remedy Request locally to
the Warden. The Warden shall allow a reasonable
extension of time for such a resubmission.
28 C.F.R. § 542.14(d). An inmate is entitled to a response to a grievance filed at the
institutional level within 20 days, a response to a grievance filed with
a BOP Regional Director within 30 days and a response to a grievance
filed with General Counsel within 40 days. These time limits are subject
to limited extensions, and an inmate must be given notice of any
extension. The BOP's failure to respond to a grievance within the
specified time period constitutes a denial of the grievance and permits
the inmate to appeal the decision to the next highest level.
28 C.F.R. § 542.18.
The affidavits submitted in connection with the present motion indicate
that plaintiff took the following steps to grieve the events of June 14,
06-19-02 Plaintiff wrote letters to the Warden of
MCC-NY, "corrections lieutenants" and his
counselor concerning the events of June
14, 2002. Petitioner received only an oral
response from "corrections lieutenants"
that they did not know what was going on
and that the matter had been referred to
an outside agency (Declaration of
Plaintiff in Opposition to Defendants'
Motions for Summary Judgment, dated April
3, 2003 ("Williams Decl."), ¶
Unspecified Date Plaintiff advises the warden
of MCC-NY and others that he wishes to
file a grievance. Plaintiff is told by
unidentified individuals that "the matter
ha[s] been referred to an `outside
agency,' [and] a grievance was not
appropriate at this time." Plaintiff was
advised to delay filing his grievance
pending an interview by an investigator.
That interview never occurred (Williams
Decl. ¶ 10(iii)). 07-12-02 Plaintiff files an informal grievance with
the warden of the Metropolitan Detention
Center ("MDC-NY"), to which he was
transferred after the events of June 12,
2002 (Williams Decl. ¶ 10(iii) and Ex. 5
07-29-02 Plaintiff receives form BP-8 (informal
grievance form) and files it (apparently
at MDC-NY) the same day. Petitioner
receives no response, but is orally
informed that grievance has been lost and
that he should file a formal grievance
form, BP-9. Plaintiff claims he was not
provided with a BP-9 until August 14, 2002
(Williams Decl. ¶ 10(iv)).
08-15-02 Plaintiff files BP-9 with BOP's Regional
Director (Williams Decl. ¶ 10(v)).
Although the copy retained by plaintiff is
marked "Sensitive," the copy in the BOP's
file contains no such designation (Compare
Williams Decl. Ex. 7 with Johnson Decl.
08-24-02 Plaintiff receives the following response
of the Regional Director to the grievance
filed on August 15, 2002:
FOR THE REASONS LISTED BELOW, THIS
REGIONAL APPEAL IS BEING REJECTED
AND RETURNED TO YOU. YOU SHOULD
INCLUDE A COPY OF THIS NOTICE WITH
ANY FUTURE CORRESPONDENCE REGARDING
* * *
REJECT REASON 1: YOU SUBMITTED YOUR
REQUEST OR APPEAL TO
THE WRONG LEVEL. YOU
SHOULD HAVE FILED AT
REGIONAL OFFICE, OR
CENTRAL OFFICE LEVEL.
REJECT REASON 2: YOU MAY ONLY SUBMIT ONE
EQUIV. OF ONE
LETTER-SIZE (8.5 × 11)
PAPER. TEXT ON ONE
SIDE. THE TEXT MUST BE
(Johnson Decl. Ex. G; Williams Decl.
¶ 10(vii) and Ex. 9 thereto (upper
case in original)).
08-25-02 Plaintiff sends revised, one page
grievance to BOP's Regional Director.
Plaintiff never received response (Williams Decl. ¶ 10(vii)). The
BOP has no record of this grievance
(Johnson Decl. ¶ 5).
Even if I make the generous assumptions that (1) the representations
that the events of June 14, 2002 had been referred to an outside agency
and that the investigation by that agency made filing a grievance
inappropriate prevented plaintiff from filing a grievance within the
twenty-day time limit prescribed by the BOP's regulations,
28 C.F.R. § 542.14.(a), and (2) plaintiff's failure to label his first
filing with the Regional Administrator as "Sensitive" is excusable,*fn5
plaintiff's attempts to exhaust the BOP's grievance procedures was
unquestionably incomplete because he never took an appeal to the final,
"General Counsel" level. The PLRA requires that an inmate exhaust all
available administrative appeals before commencing an action. Flanagan
v. Maly, 99 Civ. 12336 (GEL), 2002 WL 122921 at *2 (S.D.N.Y. Jan. 29,
2002) ("To comply with 1997a(e), a prisoner must `exhaust[ ]' his
administrative remedies, meaning that he must pursue his challenge to the conditions in question through the
highest level of administrative review prior to filing his suit.");
accord Khalid v. Reda, 00 Civ. 7691 (LAK)(GWG), 2003 WL 42145 at *3
(S.D.N.Y. Jan. 23, 2003) (Report & Recommendation); Mack v. Artuz, 01
Civ. 11832 (JSR)(GWG), 2002 WL 31845087 at *4 (S.D.N.Y. Dec. 19, 2002)
(Report & Recommendation); see also Arce v. Keane, 01 Civ. 2648 (BSJ),
2004 WL 439428 at *3 (S.D.N.Y. Mar. 9, 2004); Williams v. Cooney, 01
Civ. 4623 (RCC), 2004 WL 434600 at *3 (S.D.N.Y. Mar. 8, 2004); Singleton
v. Perilli, 03 Civ. 2271 (DC), 2004 WL 74238 at *2 (S.D.N.Y. Jan. 16,
2004) (collecting authorities); Thomas v. New York State Dep't of Corr.
Servs., 00 Civ. 7163 (NRB), 2003 WL 22671540 at *3 n.5 (S.D.N.Y. Nov.
10, 2003); McNair v. Jones, 01 Civ. 3253 (RCC), 2003 WL 22097730 at *2
(S.D.N.Y. Sep. 10, 2003); Morgan v: Maricopa Co., 259 F. Supp.2d 985, 990
n.13 (D. Ariz. 2003).
The fact that plaintiff never received a response to his second filing
with the BOP's Regional Director did not prevent him from taking an
appeal to the General Counsel level. As noted above, the Regional
Director's failure to respond to the grievance within thirty days
operated as a rejection of the grievance and triggered plaintiff's right
to take an appeal to the General Counsel level. 28 C.F.R. § 542.18.
Since plaintiff failed to pursue the final administrative remedy
available to him, he has not complied with the PLRA's exhaustion
requirement. IV. Conclusion
For all the foregoing reasons, the United States' motion to dismiss the
claims against it for lack of subject matter jurisdiction is granted in
all respects. The motion of the individual defendants for summary
judgment dismissing all claims against them is also granted because
plaintiff has failed to comply with the PLRA's exhaustion requirement.
Plaintiff's claim against the individual defendants is dismissed without
prejudice. Because it is unnecessary to do so, I do not address the
individual defendants' alternative arguments that (1) the Second Amended
Complaint fails to state a claim on which relief can be granted, and (2)
they are entitled to summary judgment on the basis of qualified immunity.
The Clerk of the Court is directed to enter judgment closing this case.