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August 5, 2004.

GLENN GOORD, et al., Defendants.

The opinion of the court was delivered by: RICHARD HOLWELL, District Judge


Plaintiff Raphael Jackson ("Jackson"), an inmate, brings this pro se action pursuant to 42 U.S.C. § 1983 against defendants Commissioner Glenn Goord, Superintendent Christopher Artuz, Deputy Superintendent Schneider, Sergeant Hofaker, and Officers Sneddan, Coryer, Miller, and Downs (collectively "Defendants"). Jackson alleges that Defendants were deliberately indifferent to his safety and health, failed to protect him, failed to provide him with medical attention, and failed to adequately train and supervise the officers at the correctional facility where he was attacked by another inmate. Defendants have moved for summary judgment, arguing, inter alia, that Jackson has failed to exhaust administrative remedies prior to commencing this action. As plaintiff has indeed failed to exhaust his administrative remedies prior to initiating this action, Defendants' motion is granted.


  This action arises out of an assault on Jackson by another inmate on June 4, 1998. (See Am. Compl. at 5-7.) The complaint in this matter was filed on September 21, 1999, and originally assigned to the Hon. Deborah A. Batts, United States District Court for the Southern District of New York.

  On May 15, 2000, in response to Defendants' request to dismiss the complaint, the Court ordered this action to be "placed on the suspense docket, pending the exhaustion of all administrative remedies available to Plaintiff." (Order of May 15, 2000.) The Court further ordered that, "[w]hen the grievance procedure has been exhausted or, should the grievance procedure prove to be unavailable, within the meaning of Section 1997e(a), Plaintiff shall notify the Court and the case shall proceed to discovery."*fn1 (Id.) Jackson filed a grievance on June 5, 2000, and the New York State Department of Correctional Services Central Office Review Committee ("CORC") issued a final administrative decision on September 27, 2000. (See Ex. B, attached to the Aff. of Thomas G. Eagen.) This action was then removed from the suspense docket on November 13, 2000, and proceeded to discovery.

  On November 21, 2003, this action was transferred to this Court. By order dated February 26, 2004, this Court set a summary judgment briefing schedule whereby opening briefs would be due by March 26, 2004, opposition briefs would be due by May 7, 2004, and reply briefs would be due by May 21, 2004. Defendants timely moved for summary judgment; however, plaintiff did not submit an opposition brief by May 7, 2004. Thus, on June 21, 2004, the Court sua sponte issued an order extending the summary judgment briefing schedule, allowing plaintiff until July 23, 2004, to file an opposition brief. The June 21 order stated that "[i]f no opposition brief is filed by July 23, 2004, the Court will decide the motion based on the briefs submitted at that time [and n]o further extensions shall be granted." (Order of June 21, 2004.) To date, Jackson has not submitted an opposition brief.


  Summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). However, it is the movant's burden to show that no genuine factual dispute exists and a court reviewing a summary judgment motion must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. See Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). When a non-moving party does not submit an opposition brief, a court must still assure itself that no material issue of fact exists. See id. "If the evidence submitted in support of the summary judgment motion does not meet the movant's burden of production, then summary judgment must be denied even if no opposing evidentiary matter is presented." Id. (emphasis in original; quotations omitted). An unopposed summary judgment motion may also fail where the undisputed facts fail to show that the moving party is entitled to judgment as a matter of law. See id.

  Section 1997e(a) of the PLRA, which was enacted by Congress "to reduce the quantity and improve the quality of prisoner suits," requires all prisoners seeking redress for prison circumstances or occurrences to first exhaust any available administrative remedies before filing suit in federal court. Porter v. Nussle, 534 U.S. 516, 524, 532 (2002). "Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit." Id. at 524. If a prisoner files suit in federal court before exhausting administrative remedies, the federal court must dismiss the complaint — suspending or continuing the action until administrative remedies are exhausted cannot "save a case from dismissal." Neal v. Goord, 267 F.3d 116, 121-22 (2d Cir. 2001), abrogated in part on other grounds by Porter v. Nussle, 534 U.S. 516 (2002); accord Benjamin v. Goord, No. 02 Civ. 1703 (NRB), 2002 WL 1586880, at *2 (S.D.N.Y. July 17, 2002) ("A plaintiff must file a valid grievance and exhaust all appeals prior to bringing suit, or the case will be dismissed, even if the plaintiff attempts to exhaust after the suit is filed.").

  At the time Judge Batts issued her May 15, 2000, order suspending the action pending exhaustion of administrative remedies, the Second Circuit had not ruled on whether a court could suspend or stay an action while a prisoner proceeded with his administrative remedy. However, the Neal decision makes clear that a court cannot suspend an action pending exhaustion of administrative remedies and, in fact, must dismiss a complaint that was filed before administrative remedies were exhausted.

  The CORC final administrative decision issued on September 27, 2000, "constituted an exhaustion of plaintiff's administrative remedies." Waters v. Schneider, No. 01 Civ. 5271 (SHS), 2004 WL 137416, at *1 (S.D.N.Y. Jan. 27, 2004). According to Section 1997e(a) of the PLRA, Jackson should not have been allowed to file or proceed with a suit before September 27, 2000. As this action was filed before Jackson exhausted his administrative remedies and as the Court should not have suspended this action pending exhaustion, the Court must now dismiss Jackson's complaint. It is unfortunate that this decision comes after the completion of discovery and perhaps after the expiration of a limitations period, which might have allowed Jackson to re-file suit had dismissal occurred earlier. However, the law mandates this result.*fn2 See, e.g., Waters, 2004 WL 137416, at *2 (dismissing complaint upon defendants' motion for summary judgment after completion of discovery); Benjamin, 2002 WL 1586880, at *2 n. 5 (dismissing complaint despite possible existence of limitations bar for plaintiff to exhaust administrative remedies); cf. McNeil v. United States, 508 U.S. 106, 112-13 (1993) (affirming dismissal of Federal Tort Claims Act suit for failure to exhaust administrative remedies even though statute of limitations had run on plaintiff's claim).


  For the reasons stated above, Defendant's motion for summary judgment [47-1] is GRANTED. Plaintiff's complaint is dismissed without ...

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