United States District Court, W.D. New York
July 22, 2004.
TREVOR GRIFFITH, Plaintiff,
DONALD SELSKY, Director of Special Housing Unit, et al., Defendants.
The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
DECISION AND ORDER
Plaintiff, Trevor Griffith, appearing pro se, 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"), asserts a number of claims against several DOCS
employees in connection with some incidents that occurred in May
1999 and October 2000, while plaintiff was incarcerated at Wende
Correctional Facility. Defendants have moved for summary judgment
on the ground that plaintiff has not exhausted his administrative
remedies as required by the Prisoner Litigation Reform Act
("PLRA"), 42 U.S.C. § 1997e(a).
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).
In May 2002, plaintiff filed a grievance concerning most of the
matters raised in this lawsuit. Defendants' Appendix ("Def.
App.") (Docket #38) Ex. 1(B). The grievance was rejected by the
grievance supervisor as untimely. Def. App. Ex. 1(C). The
grievance supervisor stated that "[t]here [wa]s no record of
[plaintiff] utilizing the grievance program in October, November
of [sic] December of 2000," and that plaintiff had "failed to
provide any mitigating circumstances" for his failure to timely
file a grievance. Id.
Plaintiff then filed a grievance against the grievance
supervisor, alleging that he had filed a grievance in November
2000, and that it was "not [plaintiff's] fault if the complaint
was `misplaced,' `thrown away' or whatever other excuse Wende wants to give for
no [sic] `showing' a record of it." Def. App. Ex. 1(D). The
grievance was denied on the merits, Def. App. Ex. 1(E), and on
appeal, CORC affirmed the denial. Def. App. Ex. 1(F).
In support of their motion, defendants have submitted an
affidavit of Thomas G. Eagen, the Director of the DOCS Inmate
Grievance Program. He states that a search of the CORC database
does not reveal any record of plaintiff having appealed to CORC
with respect to any of the claims that plaintiff has raised in
this lawsuit. Def. App. Ex. 1 ¶ 5. He states that CORC records
indicate that plaintiff has taken only two appeals to CORC: one
in 1995, concerning an incident unrelated to this lawsuit, and
the 2002 appeal from the denial of plaintiff's grievance against
the grievance supervisor. Id. ¶ 4 and Ex. 1(A).
Eagen also states that the grievance file with respect to the
2002 grievance contains a copy of a letter, dated November 25,
2000, from plaintiff to Eagen, which states:
As of the above date, I have not received a final
determination/resolution of my grievance which was
filed on November 11th, 2000. As a result, I'm
filing this as a notice of my appeal of the
non-action taken by the I.G.R.C. office at the
facility level. It has been more than the (10) ten
days allowed in the guidelines of Directive #4040.
Def. App. Ex. 1(G). Eagen states, however, that he never received
this letter prior to June 2002, when it was included as
"background material" in plaintiff's 2002 grievance appeal. Eagen
Aff. ¶ 12.
In response to defendants' motion, plaintiff states in an
affidavit that he filed a grievance in November 2000. He states
that after he filed the grievance, he was interviewed concerning
the grievance by one Sergeant Cestano. Plaintiff's Aff. (Docket
#42) ¶¶ 1, 2. Plaintiff states that he heard nothing more about
this grievance. Plaintiff has also submitted a statement*fn1 by another
inmate, Thomas Jefferson, who states that he was working as a
representative on the IGRC at Wende in November 2000, and that he
recalls plaintiff's grievance that was submitted at that time. He
states that he particularly remembers this grievance because he
witnessed some of the events that gave rise to it. Docket #41.
In addition, shortly after plaintiff filed his complaint in
this action, the Court issued a Memorandum and Order directing
him to submit proof that he had exhausted his administrative
remedies as to the claims raised in this action. Docket #3.
Plaintiff submitted a response, with documentary exhibits,
indicating that he filed a grievance on or about November 11,
2000. Docket #4. He also submitted copies of letters that he
wrote to the IGRC supervisor and Eagen, stating that plaintiff
sought to appeal from "the non-action taken by the I.G.R.C.
office" on his grievance. Id. He stated that he received no
response. Based on that submission, the Court ruled that,
"[a]ccepting plaintiff's allegations as true, . . . he has
offered sufficient claims of exhaustion to satisfy this initial
review." Docket #5 at 4. DISCUSSION
Based on the evidence submitted, I deny defendants' motion,
with one exception, as noted below. "Although `[g]enerally,
corrections officials are entitled to strict compliance with
administrative procedures,' there are circumstances in which an
inmate plaintiff's failure to exhaust his remedies may be
excused." Jenkins v. Raub, 310 F. Supp.2d 502, 503 (W.D.N.Y.
2004) (quoting Rivera v. Goord, 253 F. Supp.2d 735, 746
(S.D.N.Y. 2003)). I believe that this case presents such
There is evidence that plaintiff made reasonable attempts to
pursue his grievance in November 2000, and that his inquiries and
attempts to appeal it to the next level were met with silence by
DOCS officials. Whether that silence was deliberate or
accidental, the blame for it does not lie at plaintiff's feet.
Furthermore, when plaintiff again attempted to grieve these
matters in 2002, his grievance was rejected on the ground that
plaintiff had not filed a grievance in 2000. The evidence
submitted by plaintiff indicates that this was incorrect.
Under these circumstances, I find that plaintiff has
sufficiently exhausted his administrative remedies. See O'Connor
v. Featherston, No. 01 Civ. 3251, 2002 WL 818085, at *2
(S.D.N.Y. Apr. 29, 2002) (exhaustion requirement may be satisfied
"where . . . 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 . . ."). As the Court
stated in Lane v. Doan, 287 F. Supp.2d 210, 212-13 (W.D.N.Y.
2003), "it appears that plaintiff did make `reasonable attempts'
to file and prosecute his grievances. There is no indication that
he simply bypassed the grievance procedure; on the contrary,
plaintiff has well documented his efforts to grieve the matters
at issue here, and it appears that DOCS simply ignored many of
his grievances and inquiries." See Lewis v. Gagne,
281 F. Supp.2d 429, 436 (N.D.N.Y. 2003) ("The allegations in this case
do not amount to the classic frivolous claim Congress sought to
`filter out' in enacting the PLRA").
Although defendants contend that this Court dismissed a
complaint for failure to exhaust in a "factually identical case,"
Defendants' Memorandum of Law at 6, the case referred to, Lara
v. Klen, 02-CV-6638, is factually distinguishable. The plaintiff
in Lara had simply filed an untimely grievance, which was
denied as untimely, and he raised no mitigating circumstances for
the late filing. See Lara, Decision and Order (W.D.N.Y. Aug. 4,
2003). Here, plaintiff has submitted evidence that he did file a
timely grievance, and that his attempts to pursue it were
Although it thus appears that plaintiff did grieve most of the
claims that he raises here, the record does not indicate that
plaintiff ever filed any grievance with respect to his claims
against defendant Zydal. Accordingly, defendants' motion for
summary judgment is granted with respect to plaintiff's claim
against defendant Zydal.
Defendants' motion for summary judgment (Docket #35) is granted
in part and denied in part. The motion is granted as to plaintiff's claim against
defendant K. Zydal is granted, and that claim is dismissed. In
all other respects, the motion is denied.
IT IS SO ORDERED.