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October 21, 2004.

EFRAIN SOTO, Plaintiff,

The opinion of the court was delivered by: VICTOR MARRERO, District Judge


Plaintiff Efrain Soto ("Soto"), a former inmate under the custody of the New York State Department of Correctional Services ("DOCS"), brings an action pursuant to 42 U.S.C. § 1983. Soto makes claims alleging: 1) deliberate indifference, retaliation and conspiracy against Sergeant Joseph Belcher ("Belcher"); 2) failure to help/intervene, retaliation and conspiracy against the Superintendent of Greenhaven Correctional Facility, Charles Greiner ("Greiner"); and 3) removal from his porter II position and conspiracy against the Deputy Superintendent for Programs, Catherine Cook ("Cook"). Belcher, Greiner, and Cook (collectively, "Defendants") have moved for summary judgment on the ground that Soto failed to exhaust his administrative remedies before bringing this action. By Decision and Order dated September 30, 2004, the Court granted the motion and stated that its findings, reasoning, and conclusion would be set forth in a separate decision. Accordingly, for the reasons discussed below, Defendants' motion is granted.


  On April 30, 1998, Belcher ordered Soto to clean a Housing Block 5 ("HB5") lower tunnel area. Although he was a porter in Belcher's work area, Soto at first refused to follow the order, stating that the tunnel was not within HB5 and thus could not be assigned to him. However, the tunnel was being assigned to all HB5 porters, so Belcher again ordered Soto to clean the tunnel, telling him he would be removed from his porter position if he refused. Soto then proceeded to the tunnel and injured his back when he fell after slipping on a peanut shell that was on a stairwell in the tunnel area. Soto went to the medical unit, where he was given painkillers and ice for his back. He then returned to his cell.

  Belcher, upon learning about Soto's back injury, issued him an Inmate Counseling Notification form. The form stated that Soto would have difficulty with basic porter duties because of his back injury, and that Soto should see the Program Committee to request a less strenuous assignment. However, Soto refused to sign the form and continued to work as a porter in Belcher's area.

  On May 4, 1998, Soto was given a direct order by Corrections Officer Carlos Esteves ("Esteves") to clean the HB5 lower tunnel area. Soto refused, saying his back was hurting him. Esteves then told Soto to lock in his cell, and Soto complied with no further incident. Esteves then filled out an Inmate Misbehavior Report for Soto, charging him with Rule Violation No. 106.10 — Refusing to Obey a Direct Order. The misbehavior report was endorsed by Belcher. Belcher also issued Soto a second Inmate Counseling Notification. Again, Soto refused to sign the form and was issued a Recommendation For Program Review form by Belcher, recommending the removal of Soto from his porter duty.

  Stemming from Cook's role as Program Committee Chairperson, her office handled hundreds of inmate contacts per week, including reviewing and acting upon all program assignment and change requests. An Inmate Review Packet indicates that Soto was removed from his porter II position on or about May 24, 1998, for medical or psychiatric reasons. Greiner's office also routinely received hundreds of letters each year from inmates. Although Soto had sent letters to Greiner's office complaining about Cook's decision to remove him from his porter II position, there is no indication that Greiner ever personally responded to any of Soto's letters.

  Soto filed an Inmate Grievance Complaint ("IGC") against Belcher after the first incident on April 30, 1998, claiming that Belcher was retaliating against him because Soto had filed grievances against Belcher in the past. In the IGC, Soto asked to remain in his porter II position. The Inmate Grievance Resolution Committee ("IGRC") responded on May 7, 1998, by letting the Program Committee decide whether Soto should be reassigned. Soto appealed this decision to Greiner, who then denied the appeal on May 28, 1998.

  On August 14, 1998, well after the time limit for appealing to the Central Office Review Committee ("CORC"), Soto wrote a letter directly to the CORC. Soto claimed that he had been moved from unit to unit and had to wait to use the law library, so his appeal should still be considered timely. He also alleged that Greiner denied his appeal because Soto had filed complaints against his wife. Lastly, he stated that he understood that his appeal would likely be dismissed for exceeding the time limit but that he was writing the letter in order to exhaust all administrative remedies. The Director of the Inmate Grievance Program ("IGP"), Thomas Eagen, replied to Soto's letter and informed him that the IGP did not provide for direct referrals of grievances to the CORC. Soto then filed suit in federal court.


  When examining a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, the Court may find in favor of the moving party only when it appears 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). The Court's "responsibility is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 11 (2d Cir. 1986) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-52 (1986)). Before rendering summary judgment, a court must also determine that any unresolved issues are not material to the outcome of the litigation. "[T]he mere existence of factual issues — where those issues are not material to the claims before the court — will not suffice to defeat a motion for summary judgment." Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985) (per curiam). The litigant opposing summary judgment "may not rest upon mere conclusory allegations or denials, but must bring forward some affirmative indication that his version of relevant events is not fanciful." Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 101 (2d Cir. 1997) (internal quotation marks and citations omitted).


  Defendants move to dismiss this action because Soto failed to exhaust his administrative remedies before filing a complaint in this Court. The Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), requires a prisoner to exhaust "such administrative remedies as are available" before suing over prison conditions. Booth v. Churner, 532 U.S. 731, 733-34 (2001). Section 1997e(a)'s exhaustion requirement "applies to all prisoners seeking redress for prison circumstances or occurrences." Porter v. Nussle, 534 U.S. 516, 520 (2002). The exhaustion requirement extends to cases, such as this one, where the plaintiff seeks a remedy not available through the administrative process, such as monetary damages. See Booth, 532 U.S. at 733-34. The exhaustion requirement is meant to improve prison administration and "reduce the quantity and improve the quality of prisoner suits." See Porter, 534 U.S. at 524-25.

  In the instant case, Soto was required to seek administrative relief under the three-step IGP. Under the IGP, an inmate must first file a complaint to the IGRC within 14 calendar days of an alleged occurrence. See 7 NYCRR § 701.7(a) (1). A hearing is scheduled at which the inmate can appear in person to argue his or her case. See id. at § 701.7(a)(4). If the inmate is not satisfied with the IGRC's resolution, an appeal to the superintendent can be filed within four working days after receipt of the IGRC's response. See id. at § 701.7(b) (1). Upon receipt of the superintendent's response, an inmate may appeal to the CORC within four working days. See id. at § 701.7(c) (1). Once ...

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