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.
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
Dkt. #21, Exh. A.
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 ...