United States District Court, W.D. New York
May 10, 2004.
LESTER STEPHENSON, Plaintiff,
DUNFORD, et al., Defendants
The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
DECISION AND ORDER
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 the
facility level by bringing them to the attention of your area
supervisor." Plaintiff's Aff. Ex. C.
Plaintiff's fourth "grievance," dated June 21, 1999, was addressed to
Superintendent Victor Herbert (who had replaced Kelly). Plaintiff's Aff.
Ex. D. In response, plaintiff received a letter dated July 6, 1999, from
Deputy Superintendent of Security John Burns. Burns stated that he had
been "led to believe that Lt. Grant spoke with [plaintiff] and the
employees cited. Lt. Grant further advises me that your problem has been
addressed." Plaintiff's Aff. Ex. E.
Plaintiff also notes that his mother filed a complaint with the IGO
around May 12, 1999, concerning the alleged assault. The IGO issued a
report on November 16, 1999 finding her complaint to be unsubstantiated.
Plaintiff's Aff. Ex. F. Plaintiff says that it is "unclear to [him]
. . . how this separate investigation fits within [his] grievance
process." Plaintiff's Aff. ¶ 9. DISCUSSION
I. Defendants' Motion for Leave to Amend their Answers
Plaintiff contends that defendants' motion to amend should be denied,
based primarily on defendants' delay in filing the motion. He argues
that, even accepting defendants' assertion that they had no reason to
assert an exhaustion defense prior to the Supreme Court's Porter decision
in February 2002, it was unreasonable for defendants to wait twenty-one
months before moving to amend to assert that defense. Discovery closed in
April 2003, and Plaintiff never had the opportunity to address the
exhaustion issue in discovery. (Plaintiff has not filed a Rule 56(f)
affidavit, however, or said what he would need to address in discovery.)
Plaintiff contends that by waiting so long, defendants have waived the
Rule 15(a) of the Federal Rules of Civil Procedure provides that leave
to amend a pleading "shall be freely given when justice so requires." In
accordance with that directive, "[p]arties are generally allowed to amend
their pleadings absent bad faith or prejudice." Commander Oil Corp.
v. Barlo Equip. Corp., 215 F.3d 321, 333 (2d Cir.) (internal
citations omitted), cert. denied, 531 U.S. 979 (2000). The
Supreme Court has also emphasized that amendment should normally be
permitted, and has stated that refusal to grant leave without
justification is "inconsistent with the spirit of the Federal Rules."
Foman v. Davis, 371 U.S. 178, 182 (1962).
"Notwithstanding a defendant's failure to timely plead [a] defense, a
district court may still entertain affirmative defenses at the summary
judgment stage in the absence of undue prejudice to the plaintiff, bad
faith or dilatory motive on the part of the defendant, futility, or undue
delay of the proceedings." Saks v. Franklin Covey Co.,
316 F.3d 337, 350 (2d Cir. 2003); accord Monahan v. New York City Dep't of Corr., 214 F.3d 275, 283 (2d Cir.),
cert. denied, 531 U.S. 1035 (2000); Block v. First Blood
Assocs., 988 F.2d 344, 350 (2d Cir. 1993). "Delay alone
unaccompanied by [one of these other factors] does not usually warrant
denial of leave to amend." Rachman Bag Co. v. Liberty Mut. Ins.
Co., 46 F.3d 230, 234-35 (2d Cir. 1995) (affirming grant of leave to
amend answer where the motion was made more than four years after the
complaint was filed; even though defendant's "reasons for the delay
[we]re not entirely clear, [plaintiff] . . . offered no reason, such
as prejudice or bad faith on [defendant's part, to call the district
court's decision into question").
In determining what constitutes "prejudice," courts "consider whether
the assertion of the new claim would: (i) require the opponent to expend
significant additional resources to conduct discovery and prepare for
trial; (ii) significantly delay the resolution of the dispute; or (iii)
prevent the plaintiff from bringing a timely action in another
jurisdiction. Mere delay, however, absent a showing of bad faith or undue
prejudice, does not provide a basis for a district court to deny the
right to amend." Block v. First Blood Associates,
988 F.2d 344, 350 (2d Cir. 1993) (internal citations and quotes omitted).
Plaintiff has failed to show prejudice here. Although it is not
apparent why defendants waited as long as they did to make their motion,
the cases cited above make clear that delay alone is not a sufficient
reason to deny a motion to amend.
Plaintiff notes that discovery is closed, but he has not identified
what relevant information he would seek to obtain through discovery or
how any information not already within his possession would reasonably be
expected to raise a genuine issue of material fact on the exhaustion
issue. See Oneida Indian Nation v. City of Sherrill,
337 F.3d 139, 167 (2d Cir. 2003), petition for cert. filed, 72 U.S.L.W. 3421 (Dec. 11, 2003) (No. 03-85). Since plaintiff has
not demonstrated that he will be prejudiced if the Court grants
defendants' motion to amend, that motion is granted.*fn3
II. Defendants' Motion for Summary Judgment
As to the exhaustion issue, plaintiff states that he did attempt to
grieve the incident by submitting numerous letter complaints to various
DOCS officials. He contends that he attempted to comply with the
expedited grievance procedure under 7 N.Y.C.R.R. § 701.11. Plaintiff
states that no one at DOCS ever told him that he had not properly grieved
the incident, that he needed to follow a different procedure, or that he
had the right to appeal the responses he received.
It is clear from the record, however, that plaintiff did not
comply with the informal grievance procedure. First, he did not report
the alleged assault to the immediate supervisor of the DOCS employees
involved in the incident. Plaintiff claims that he could not report it to
the area supervisor, Sgt. Stachewicz, since he was one of the people
involved, but there is no evidence that he reported, or that he was
unable to report, the incident to Sgt. Stachewicz's immediate supervisor.
Although plaintiff did write letters about the incident to various DOCS
officials, "`[c]ourts have repeatedly held that complaint letters to the
DOCS Commissioner or the facility Superintendent do not satisfy the
PLRA's exhaustion requirements.'" Branch v. Brown, 2003 WL
21730709, at *8 (S.D.N.Y. July 25, 2003) (quoting Nelson v.
Rodas, 2002 WL 31075804, at *3 (S.D.N.Y. Sept. 17, 2002)). See also Houze v. Segarra, 217 F. Supp.2d 394, 396
(S.D.N.Y. 2002) (writing letters to superintendent and Inspector General
via parents insufficient to exhaust remedies); Beatty v. Goord,
210 F. Supp.2d 250, 255-56 (bypassing the formal grievance procedures
and writing letters to the superintendent did not exhaust prisoner's
administrative remedies); Hernandez v. Coffey, 2003 WL 22241431,
at *3 (S.D.N.Y. Sept. 29, 2003) ("it is well settled that complaint
letters to DOCS or prison officials do not satisfy the PLRA's exhaustion
requirements"); Sedney v. Hasse, 2003 WL 21939702, at *4
(S.D.N.Y. Aug. 12, 2003) (noting that courts have "repeatedly held that
complaint letters to the DOCS Commissioner or the facility Superintendent
do not satisfy the PLRA's exhaustion requirements"); Muhammad v.
Pico, 2003 WL 21792158, at *8 (S.D.N.Y. Aug. 5, 2003) ("District
court decisions in this circuit have repeatedly held that complaint
letters to DOCS Commissioner or the facility Superintendent do not
satisfy the PLRA's exhaustion requirements"); Hemphill v. New
York, 198 F. Supp.2d 546, 549 (S.D.N.Y. 2002) (letter to
superintendent is "insufficient" to warrant considering a matter
"effectively grieved"); McNair v. Sgt. Jones, 2002 WL 31082948,
at *7 (S.D.N.Y. Sept. 18, 2002) ("forgoing the step of filing a claim
with the IGRC by submitting letters directly to the superintendent does
not satisfy the exhaustion requirement"); Byas v. New York, 2002
WL 1586963, at *2 (S.D.N.Y. July 17, 2002) ("Permitting a plaintiff to
bypass the codified grievance procedure by sending letters directly to
the facility's superintendent would undermine the efficiency and the
effectiveness that the prison grievance program is intended to achieve").
Even assuming arguendo that plaintiff's letters constituted an
"informal" grievance, he still failed to exhaust his administrative
remedies, since plaintiff never appealed the adverse determinations to
CORC. As stated, it does appear that Kelly became aware of plaintiff's
allegations at some point. After his April 22, 1999 letter to Commissioner
Goord, see Bove Reply Affirmation Ex. C at 1, Goord's office
faxed a copy of plaintiff's letter to Kelly on April 29 and asked him to
investigate plaintiff's complaint. Id. at 3.
On May 5, 1999, First Deputy Superintendent Berbary sent the
commissioner's office a memorandum "find[ing] no information that would
indicate inappropriate action by staff." Id. at 4. On May 13,
Deputy Commissioner Leclaire wrote a letter to plaintiff informing him
that Kelly had conducted an investigation into plaintiff's allegations,
and found that plaintiff had assaulted staff, making it necessary for
staff to use force to subdue him. Id. at 6.
Arguably, then, plaintiff did initiate an informal grievance
procedure. He never sought to appeal from Kelly's decision, however, and
therefore did not exhaust his administrative remedies.
It is well established that to exhaust "a prisoner must grieve his
complaint about prison conditions up through the highest level of
administrative review" before filing suit. Porter v. Goord, No.
01 Civ. 8996 (NRB), 2002 WL 1402000, at *1 (S.D.N.Y. June 28, 2002)
(citing Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001)
("grievances must now be fully pursued prior to filing a complaint in
federal court"), and Fletcher v. Haase, No. 99 Civ. 9549 (GEL),
2002 WL 313799, at *1 (S.D.N.Y. Feb. 27, 2002) ("This lawsuit . . .
therefore, can only proceed after [plaintiff] has exhausted any available
administrative remedies, including all appellate remedies provided within
the system")); see also Gibson v. Goord, 280 F.3d 221, 223 (2d
Cir. 2002) (noting plaintiff "had not pursued the available remedy of
filing a `level two grievance'"). "Complete exhaustion" is therefore
required. Graham v. Cochran, No. 96 Civ. 6166, 2002 WL 31132874,
at *1, * 6 (S.D.N.Y. Sept. 25, 2002) (noting that "action must be
dismissed because [plaintiff] unreasonably failed to appeal"). In short,
the prisoner "must pursue his challenge to the conditions in question
through to the highest level of administrative review prior to his suit." Flanagan v.
Maly, 2002 WL 122921, at *2 (S.D.N.Y. Jan. 29, 2002).
That principle applies regardless of whether the "formal" or "informal"
procedure is used. "[E]ven under the expedited procedure, plaintiff is
required to appeal any decision to the CORC in order to exhaust."
Velez v. Kulhmann, 2003 WL 22004899, at *3 (S.D.N.Y., Aug. 22,
2003); see also Rodriguez v. Ward, 2003 WL 22283810, at *3
(S.D.N.Y. Oct. 3, 2003) ("Additionally, Plaintiff neglected to appeal the
superintendent's conclusion to the Central Office Review Committee.
Therefore, . . . the evidence in the instant case sufficiently and
conclusively demonstrates that Plaintiff failed to exhaust his
administrative remedies . . .").
There is authority that the exhaustion requirement is satisfied where
an informal grievance results in a result favorable to the
inmate. In Perez v. Blot, 195 F. Supp.2d 539, 544-46 (S.D.N.Y.
2002), for example, after the inmate plaintiff complained about the
incident giving rise to his suit to numerous DOCS officials, an
exhaustive internal investigation was conducted by the Inspector
General's Office, as a result of which the Inspector General's Office
purportedly concluded that some or all of the defendants in the later
federal action had used excessive force, and allegedly referred the
matter for further investigation to the New York State Police Bureau of
Criminal Investigation. Upon further investigation, the state police
allegedly referred the matter to the local district attorney's office for
prosecution of the correctional officers involved.
Denying the defendants' motion for summary judgment, the court granted
the plaintiff's discovery request, relying in part upon the Second
Circuit's decision in Marvin v. Goord, 255 F.3d 40, 43 n. 3 (2d
Cir. 2001), in which the court held that the resolution of a grievance
"through informal channels satisfies the exhaustion requirement, as under
the administrative scheme applicable to New York prisoners, grieving
through informal channels is an available remedy."
In reaching its decision, however, the district court in Perez
noted that "[i]n Marvin, the Second Circuit explained that the
plaintiff's "submissions indicate that he succeeded in
overturning the prohibition [in question] informally by complaining to
various correctional officials." Perez, 195 F. Supp.2d at 545
(quoting Marvin, 255 F.3d at 43 (emphasis added)). The court
added that "[a]s in Marvin, the Plaintiff here also contends that he
successfully obtained as favorable a resolution to his grievance as
possible after he complained about the assault to `correctional
officials.'" Id. The court said that since the "[p]laintiff's]
alleged complaints to correctional officials about the assault
purportedly secured the same favorable resolution available to him
pursuant to the [formal] procedure. . . . [I]t would make little sense
to demand that Plaintiff jump through the further, elaborate hoops of the
Both Perez and Marvin, then, merely stand for the
proposition "that a grievance through informal channels satisfies the
exhaustion requirement if the prisoner thereby obtained a favorable
resolution of his grievance." Nelson v. Rodas, No. 01CIV7887,
2002 WL 31075804, at *3 n. 9 (S.D.N.Y. Sept. 17, 2002). If an inmate
receives a favorable decision, of course, he has nothing to appeal to
Here, though, plaintiff received an unfavorable result. Assuming that
this was an informal grievance, he could have appealed that to CORC.
There is no reason to excuse his failure to appeal simply because this
was not a formal grievance. It would make little sense to hold that an
inmate who goes through formal grievance channels must appeal to CORC in
order to satisfy the exhaustion requirement, but that an inmate who
instead merely writes letters to DOCS officials need not do so. That would simply encourage inmates to bypass the formal grievance
procedure altogether, and would not be consonant with either the intent
behind the PLRA or the New York regulatory scheme. See Porter,
534 U.S. at 530 ("It seems unlikely that Congress, when it included in
the PLRA a firm exhaustion requirement, meant to leave the need to
exhaust to the pleader's option").
Plaintiff also claims that no one at DOCS ever told him that he could
appeal the superintendent's decision. Defendants, however, have submitted
evidence that plaintiff received a copy of the inmate orientation manual,
which sets forth the appeal process, on May 10, 1997. See Bove
Reply Affirmation Ex. B. There is also evidence that plaintiff had
previously appealed grievances all the way to CORC, so he clearly was
aware of and understood the appeal process and how it works. Eagen Decl.
(Docket #6) Ex. A.
There is no evidence that defendants affirmatively led plaintiff to
believe that he could not appeal, or that he did not have to appeal in
order to exhaust his remedies. Courts have held that administrative
remedies that have not technically been exhausted may nonetheless be
waived or estopped under exceptional circumstances, such as 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 the inmate's grievances or otherwise
impeded or prevented his efforts, and (3) the state's time to respond to
the grievance has expired." O'Connor v. Featherston, 2002 WL
818085, *2-3 (S.D.N.Y. Apr. 29, 2002) (collecting cases).
There is no such evidence here. I do not believe that defendants had an
obligation to tell plaintiff that he could appeal from Kelly's adverse
decision, especially when the inmate handbook expressly states, "If you are not satisfied with the decision of
the Superintendent, you can then appeal your case to the Central Office
Review Committee. . . ." Bove Reply Decl. Ex. Bat 10. Since plaintiff
had been apprised of the appeals process, defendants' failure to
expressly tell him that he could appeal the specific decisions concerning
the alleged assault does not excuse plaintiff's failure to exhaust.
Plaintiff also relies on this Court's decision in Lane v.
Doan, 287 F. Supp.Sd 210 (W.D.N.Y. 2003), in which I denied the
defendants' motion for summary judgment based on my finding that the
plaintiff had made reasonable attempts to file and prosecute his
grievances. The plaintiff in Lane, however, well documented his
efforts to grieve the incident in that case, and there was evidence that
DOCS officials simply ignored his complaints, thereby effectively
thwarting his ability to grieve his claim. Id. at 212-13. In
contrast, plaintiff in the case at bar does not contend that defendants
ignored his complaints, or that he was prevented from filing a grievance.
He admits that he bypassed the grievance program and sent complaints
directly to the superintendent, IGO, and Commissioner. It is also
undisputed that he did in fact receive a ruling on his assault
allegations, albeit an unfavorable one, and that he failed to appeal it
to CORC. Plaintiff's reliance on Lane is therefore
Defendants' motion for leave to amend their answers and for summary
judgment (Docket #63) is granted, and the complaint is dismissed.
IT IS SO ORDERED.