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United States District Court, S.D. New York

May 25, 2004.


The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge


Pro se plaintiff Corey Lashley has moved to vacate this Court's September 24, 2002 Order dismissing his section 1983 Complaint because he failed to exhaust administrative remedies. On October 21, 2002, Lashley filed a Notice of Appeal. On November 5, 2003, the Second Circuit issued an Order dismissing the appeal. The November 5th Order directed Lashley to file a motion in this Court, under Federal Rule of Civil Procedure Rule 60(b), addressing whether he exhausted his administrative remedies with regard to any of his claims. Lashley filed a Rule 60(b) motion on February 11, 2004. The Second Circuit issued its Mandate on April 5, 2004, which was transmitted to the district court on April 14, 2004. For the following reasons, Lashley's motion is denied. I. JURISDICTION

  "The filing of a notice of appeal is an event of jurisdictional significance — it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982); see also United States v. Camacho, 302 F.3d 35, 36 (2d Cir. 2002). The Federal Rules of Appellate Procedure carve out an exception to this general rule where there is a pending motion in the district court "(i) for judgment under Rule 50(b); (ii) to amend or make additional factual findings under Rule 52(b), whether or not granting the motion would alter the judgment; (iii) for attorney's fees under Rule 54 if the district court extends the time to appeal under Rule 58; (iv) to alter or amend the judgment under Rule 59; (v) for a new trial under Rule 59; or (vi) for relief under Rule 60 if the motion is filed no later than 10 days after the judgment is entered." Fed.R.App.P. 4(a)(4)(A). If a party files a notice of appeal after one of these specified motions is filed in the district court, but before it is ruled upon, "the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered." Fed.R.App.P. 4(a)(4)(b).

  Lashley's motion to vacate the judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure was made while his appeal was pending. The filing of the Notice of Appeal divested this Court of jurisdiction as Lashley's motion did not fall within any of the above exceptions. Because the motion involved the same issues "involved in the appeal," Griggs, 459 U.S. at 58, this Court had no jurisdiction over this action at the time Lashley sought to vacate the judgment. See Kai Wu Chan v. Reno, 932 F. Supp. 535, 537-38 (S.D.N.Y. 1996) (after a notice of appeal is filed, the district court lacks jurisdiction over pending motions except in the specific circumstances delineated in Rule 4 of the Federal Rules of Appellate Procedure). However, now that the appeal has been dismissed, jurisdiction has been restored to this Court because jurisdiction follows the mandate. See United States v. Rivera, 844 F.2d 916, 921 (2d Cir. 1998) (citing Ostrer v. United States, 584 F.2d 594, 598 (2d Cir. 1978) ("The effect of the mandate is to bring the proceedings in a case on appeal in our Court to a close and to remove it from the jurisdiction of this Court, returning it to the forum whence it came.")). This Court can now rule on the merits of Lashley's motion.


  The Prisoner Litigation Reform Act ("PLRA") states that "no action shall be brought with respect to prison conditions under section 1983 of this title . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). This 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, 122 S.Ct. 983, 992 (2002). Inmates must therefore exhaust all administrative remedies, at all levels of appeal, in order for their claims to survive a motion to dismiss. See Hemphill v. New York, 198 F. Supp.2d 546, 548 (S.D.N.Y. Apr. 19, 2002).

  DOCS has created a three-tiered grievance process for all prisoner complaints. See N.Y. Comp. Codes R. & Regs. tit. 7, § 701.7. First, an inmate must file a grievance with the Inmate Grievance Review Committee ("IGRC"), which is composed of fellow inmates and various prison officials. See id. § 701.7(a). Second, if the inmate is dissatisfied with the IGRC decision, he must appeal to the superintendent of the facility. See id. § 701.7(b). Third, if the inmate does not receive a favorable decision from the superintendent, he must appeal to the Central Office Review Committee ("CORC"). See id. § 701.7(c). The superintendent's response at the second level must provide "simple directions on how this decision may be appealed" to the CORC. Id. § 701.7(b)(5). The grievance process is then complete and the inmate, if still dissatisfied, may bring a complaint in the appropriate court. See Hemphill, 198 F. Supp.2d at 548.

  The PLRA requires a plaintiff to exhaust all available administrative remedies before a complaint in federal court is filed. See 42 U.S.C. § 1997e(a). Even where an inmate receives no response to his initial level grievance, he is still required to file an appeal in order to satisfy the exhaustion requirement. See Burns v. Moore, No. 99 Civ. 966, 2002 WL 91607, at *8 (S.D.N.Y. Jan. 24, 2002); Long v. Lafko, No. 00 Civ. 723, 2001 WL 863422, at *1-2 (S.D.N.Y. July 31, 2001) (an inmate's complaint was dismissed where plaintiff failed to appeal a grievance after not having received a determination at the lower grievance level). III. DISCUSSION

  A. Plaintiffs Grievances

  Lashley's motion must be denied on the merits because he has failed to show that he fully exhausted all the grievances that comprise his federal action. In connection with his motion to vacate, plaintiff alleges that he filed ten grievances dated and identified as follows: January 28, 1999 (GH-39324-98); January 30, 1999 (GH-39325-98 and GH-39326-98); February 2, 1998 (GH-39332-98); February 6, 1998 (GH-39395-98); February 9, 1998 (GH-39405-98); February 11, 1998 (GH-39406-98); June 23, 1999 (GH-42530-99); August 4, 1999 (an informal letter of complaint to Superintendent Christopher Artuz); and August 18, 1999 (not produced by plaintiff).

  The only grievance in which plaintiff fully exhausted his administrative remedies by appealing to the CORC is the June 23, 1999 grievance. See CORC Decision dated September 8, 1999, Ex. E-4 to Plaintiff's Affidavit in Support of Notice of Motion to Vacate Judgment ("Pl Aff."). Plaintiff admittedly did not appeal the January 28, 1998, February 2, 1998 and February 6, 1998 grievances. See Pl. Aff. ¶¶ 1(b), 3(b) and 4(b) ("There was no need to further appeal the Grievance decision because plaintiff's . . . request[] was granted to a certain extent and that extent did not deny plaintiff's Grievance."). Contrary to plaintiff's contention, he did not appeal the grievances he filed on January 30, 1998, February 9, 1998, and February 11, 1998. At the end of each Inmate Grievance Complaint form, there is a section entitled "Appeal Statement" which the inmate signs in order to appeal an unfavorable decision by the IGRC to the Superintendent. Plaintiff did not sign any of the Appeal Statements to any of these grievances. See Ex. A to Letter of Assistant Attorney General Susan H. Odessky, dated April 12, 2004. Even if plaintiff had appealed these decisions to the Superintendent, there is no proof that he further appealed them to the CORC. See September 13, 2000 Letter from Thomas G. Eagen, Director of Inmate Grievance Program, stating that "the Central Office Review Committee (CORC) has no record of receipt of grievances # GH-39325 98, GH-39326-98, GH-39405-98 nor GH-39406-98. Ex. D-10 to PL Aff. See also October 3, 2000 Letter from Eagen stating that "CORC has no record of receiving the four grievances filed in 1998 from Green Haven Correctional Facility." Ex. D-12 to Pl. Aff. Plaintiff's August 4, 1999 grievance is an informal complaint letter to Superintendent Artuz. The New York State Department of Correctional Services ("DOCS") responded to this letter in an Inter-Departmental Communication addressed to plaintiff and dated August 24, 1998. See Ex. B-3 to Pl. Aff. Regardless of the form of response, "[c]ourts have repeatedly held that complaint letters to the DOCS Commissioner or the facility Superintendent do not satisfy the PLRA's exhaustion requirements." Nelson v. Rodas, No. 01 Civ. 7887, 2002 WL 31075804, at *3 (S.D.N.Y. Sept. 17, 2002) (collecting cases). Lastly, plaintiff did not produce the alleged August 17, 1999 grievance which raises the presumption that it was never filed, much less fully exhausted. B. Total Exhaustion

  Although defendants concede that the June 23, 1999 grievance has been fully exhausted, see Odessky Letter at 3, they argue that the entire action should be dismissed, not merely the unexhausted portion, because plaintiff's Complaint contains both exhausted and unexhausted claims. Courts are currently split on the question of whether the PLRA requires "total exhaustion," an issue now pending before the Second Circuit. See Ortiz v. McBride, 323 F.3d 191, 195 (2d Cir. 2003) (collecting cases within this district). See also Nelson, 2002 WL 31075804, at *5 (collecting circuit and district cases outside this district).

  Although the Second Circuit has not yet ruled on the "total exhaustion" issue, Judge John G. Koeltl has upheld defendants' position, relying on the plain language of the statute which states that "`*[n]o action shall be brought . . . until such administrative remedies as are available are exhausted.'" Saunders v. Goord, No. 98 Civ. 8501, 2002 WL 1751341, at *3 (S.D.N.Y. July 29, 2002) (quoting 42 U.S.C. § 1997e(a) (emphasis in original)). Judge Lewis A. Kaplan adopted this reasoning in Vidal v. Gorr, No. 02 Civ. 5554, 2003 WL 43354, at *1 (S.D.N.Y. Jan. 6, 2003), when he held that an entire complaint must be dismissed for failure to exhaust even one claim. The reasoning of my colleagues is especially persuasive where, as here, only one out often grievances was fully exhausted. Accordingly, plaintiff's Complaint is a "mixed" complaint that cannot stand under the PLRA. IV. CONCLUSION

  For the foregoing reasons, Lashley's motion to vacate the judgment is denied. The Clerk of the Court is directed to close this motion [Document #27] and this case.



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