The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
Plaintiff, Lester Stephenson, commenced this action under
42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State
Department of Correctional Services ("DOCS"), alleges that on April 16,
1999, at which time plaintiff was incarcerated at Attica Correctional
Facility, four correctional officers ("C.O.s") and a DOCS sergeant
assaulted him. Named as defendants are those five individuals, as well as
Walter Kelly, the superintendent of Attica, who is alleged to have failed
to adequately train and supervise the other four defendants.
Defendants have moved for leave to amend their answers to assert the
affirmative defense of failure to exhaust administrative remedies as
required by the Prisoner Litigation Reform Act ("PLRA"),
42 U.S.C. § 1997e(a), as well as for summary judgment on that ground.
For the reasons that follow, defendants' motion is granted, and the
complaint is dismissed. 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 7 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).
There is also an alternative procedure available to an inmate who
claims that he was harassed by corrections officers. See 7 N.Y.C.R.R.
§ 701.11. Under this expedited or "informal" grievance procedure, an
inmate who believes that he has been the victim of employee misconduct or
harassment "should first report such occurrences to the immediate
supervisor of that employee." The report is then forwarded to the
If the inmate's allegations present a harassment issue, the
superintendent either: (1) initiates an in-house investigation; or (2)
requests an investigation by the inspector general's office (or, if criminal activity is involved, by the New York State Police Bureau
of Criminal Investigation). Within twelve working days of receipt of the
grievance, the superintendent is to render a decision. If the
superintendent fails to do so within twelve days, "the grievant may
appeal his grievance to the CORC. This is done by filing a notice of
decision to appeal with the IGP clerk." 7 N.Y.C.R.R. § 701.11(6). The
inmate must file the appeal within four working days of receipt of the
superintendent's response. § 701.11(7).
The Second Circuit has held "that under the administrative scheme
applicable to New York prisoners, resolution of an inmate's grievances
through informal channels can satisfy the exhaustion requirement of
42 U.S.C. § 1997e(a)." Ortiz v. McBride, 323 F.3d 191, 194 (2d
Cir. 2003) (citing Marvin v. Goord, 255 F.3d 40, 43 n. 3 (2d
Cir. 2001) (per curiam)).
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. Over 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, however, 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"). FACTUAL BACKGROUND
On the form pro se complaint,*fn1 plaintiff checked "Yes" in
answer to a question asking whether he had filed a grievance about his
claim. He stated that he filed a complaint with the Inspector General's
Office ("IGO") and that it was found to be unsubstantiated. He also
stated that he did not appeal the decision. Where the form asked why not,
plaintiff wrote, "Last course of action available."
In their motion, defendants state that by his own admission, plaintiff
did not follow the three-step process outlined above. They have also
submitted affidavits of David D. Caryl, the IGP Supervisor at Attica, and
Thomas G. Eagen, the Director of the IGP, stating that a search of IGP
records did not uncover any record of plaintiff having filed a grievance
concerning the alleged assault, or any record that CORC ever received an
appeal from plaintiff concerning the assault. See Docket #63,
Exs. 1 and 2.
In opposition to defendants' motion, plaintiff has submitted an
affidavit stating that he wrote four letters regarding the incident. The
first, written "immediately" after the incident, was addressed to
Superintendent Kelly. Plaintiff states, however, that he did not retain a
copy of this grievance.*fn2
Plaintiff states that he wrote this first letter in an attempt to
comply with the informal grievance process. That process ordinarily
requires the inmate to report the incident to the immediate supervisor of the alleged perpetrator, but plaintiff says
that he could not submit it to the area supervisor, Sgt. Stachewicz,
since he was one of the people involved. (Stachewicz is a named defendant
in this action.)
The second "grievance" was dated April 22, 1999, and addressed to the
IGO. Plaintiff also provided a copy to First Deputy Superintendent James
Berbary at Attica. Plaintiffs Aff. (Docket #70) Ex. A. Plaintiff also
copied that grievance by hand the same day and sent it to DOCS
Commissioner Glenn Goord. Plaintiff's Aff. Ex. B.
Plaintiff received a response to his letter to Goord, dated May 13,
1999, from Deputy Commissioner Lucien Leclaire. Leclaire said that Kelly
had already conducted an investigation into plaintiff's allegations, and
that plaintiff had been found guilty of assault at a Tier III hearing on
May 6, 1999. Leclaire added, "In the future, address such concerns at ...