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September 2, 2004.

RICHARD AUGUSTINE, et al., Defendants.

The opinion of the court was delivered by: KEN SCHROEDER, Magistrate Judge


Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to the undersigned to conduct all proceedings in this case, including the entry of final judgment. Dkt. #19.

Currently before the Court is the defendants' motion for summary judgment for failure to exhaust administrative remedies (Dkt. ##4,10), which the Court stayed pending the Court of Appeals' decisions in Ortiz v. McBride, ___ F.3d ___, 2004 WL1842644 (2d Cir. Aug. 18, 2004); Abney v. New York Dep't of Corr. Servs., ___ F.3d ___, 2004 WL 1842647 (2d Cir. Aug. 18, 2004); Giano v. Goord, ___ F.3d ___, 2004 WL 1842652 (2d Cir. Aug. 18, 2004) ; Hemphill v. New York, ___ F.3d ___, 2004 WL 1842658 (2d Cir. Aug. 18, 2004); and Johnson v. Testman, ___ F.3d ___, 2004 WL 1842669 (2d Cir. Aug. 18, 2004). Dkt. #29. Upon consideration of those decisions and for the reasons set forth below, defendants' motion for summary judgment is denied. BACKGROUND

  Plaintiff, proceeding pro se, commenced this action pursuant to 42 U.S.C. § 1983 alleging that defendants used excessive force against him and failed to protect him during a disturbance in the visiting area at Southport Correctional Facility ("Southport"), on June 24, 2000, in violation of the Eighth Amendment to the United States Constitution. Dkt. #1. The defendants moved for summary judgment for failure to exhaust administrative remedies on the ground that plaintiff never appealed his grievance to the Department of Corrections ("DOCS"), Central Office Review Committee ("CORC"). Dkt. #4, 10. In support of their motion, defendants submit an affidavit from the Assistant Director of DOCS' Inmate Grievance Program ("IGP"), affirming that the CORC computer database of grievance appeals reveals "no record that any grievance appeal by plaintiff was received from the facility." Dkt. #7.

  In response to the motion, plaintiff submitted an affidavit stating that he filed a grievance regarding the assault which is the basis of his Eighth Amendment claim and that this grievance, filed as SPT 19204, was deemed meritless. Dkt. #21. Plaintiff further affirms that "the very next day," he "appealed the decision to Albany." Dkt. #21. Attached to his affidavit is a copy of the Southport IGP's Superintendent's Decision dated August 28, 2000, finding plaintiff's grievance to be without merit, and a carbon copy of the following handwritten letter purporting to appeal that decision:
TO: Albany Grievance Office FROM: Jamel Martinez, 97A1635 RE: Appealing Grievance Decision DATE: 8-30-2000 Dear Sir/Madam,
I filed a grievance regarding an incident that took place on June 24, 2000.
I was assaulted by many C.O. [sic] here at Southport while on a visit. I filed a grievance on August 1, 2000 & was denied on August 28, 2000.
Enclosed is a copy of my grievance & a copy of the superintendent's decision. Also, I'm enclosing a report with C.O. Augustine stating that he did use his baton with knowledge that I had no weapon & was badly cut as well as stabbed.
Please, be fair & take into account the documents enclosed.
Respectfully Submitted, Jamel Martinez 97A1635
Dkt. #21, Exh. A.


 Summary Judgment

  Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party, and must give extra latitude to a pro se plaintiff." Thomas v. Irvin, 981 F. Supp. 794, 799 (W.D.N.Y. 1997) (internal citations omitted). A fact is "material" only if it has some effect on the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; see Bryant v. Maffucci, 923 F.2d 979 (2d Cir.), cert. denied, 502 U.S. 849 (1991).

  Once the moving party has met its burden of ?demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely upon a `metaphysical doubt' concerning the facts, or on the basis of conjecture or surmise." Bryant, 923 F.2d at 982. A party seeking to defeat a motion for summary judgment

must do more than make broad factual allegations and invoke the appropriate statute. The [party] must also show, by affidavits or as otherwise provided in Rule 56 of the Federal Rules of Civil Procedure, that there are specific factual issues that can only be resolved at trial.
Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).

  Pursuant to Fed.R. Civ. P. 56(e), affidavits in support of or in opposition to a motion for summary judgment "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Thus, affidavits "must be admissible themselves or must contain evidence that will be presented in an admissible form at trial." Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001), citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); see also H. Sand & Co. v. Airtemp Corp., 934 F.2d 450, 454-55 (2d Cir. 1991) (hearsay testimony that would not be admissible if testified to at trial may not properly be set forth in an affidavit).

  Exhaustion of Administrative Remedies

  The Prison Litigation Reform Act of 1995 ("PLRA") states: "No 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." 42 U.S.C. § 1997e(a). In Porter v. Nussle, 534 U.S. 516 (2002), the Supreme Court held that exhaustion of administrative remedies in 1997(e) cases is mandatory*fn1 and should be applied broadly. Id. at 524. The Nussle Court reasoned that requiring inmates to follow the grievance process would ultimately "reduce the quantity and improve the quality of prisoner suits;" filter out frivolous claims; and for those cases that eventually come to court, the administrative record could potentially clarify the legal issues. Id. at 524-25. "Even when the prisoner seeks relief not available in grievance proceedings" — such as monetary damages — "exhaustion is a prerequisite to suit." Id. at 524, citing Booth v. Churner, 532 U.S. 731, 741 (2001)). Thus, the "PLRA's exhaustion 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." Id. at 532.

  In assessing what constitutes exhaustion of administrative remedies, the Court of Appeals for the Second Circuit has recently determined that
a three-part inquiry is appropriate in cases where a prisoner plaintiff plausibly seeks to counter defendants' contention that the prisoner has failed to exhaust available administrative remedies as required by the PLRA, 42 U.S.C. § 1997e(a). Depending on the inmate's explanation for the alleged failure to exhaust, the court must ask whether administrative remedies were in fact "available" to the prisoner. Abney v. McGinnis, No. 02-0241. The Court should also inquire as to whether the defendants have forfeited the affirmative defense of non-exhaustion by failing to raise or preserve it, Johnson v. Testman, No. 02-0145, or whether the defendants' own actions inhibiting the inmate's exhaustion of remedies may estop one or more of the defendants from raising the plaintiff's failure to exhaust as a defense, Ziemba,*fn2 366 F.3d at 163. If the court finds that administrative remedies were available to the plaintiff, and that the defendants are not estopped and have not forfeited their non-exhaustion defense, but that plaintiff nevertheless did not ...

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