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May 10, 2004.

DUNFORD, et al., Defendants

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 superintendent.

  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 ...

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