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May 16, 2005.

GLENN GOORD, Commissioner, N.Y.S.D.O.C., and MICHAEL GIAMBRUNO, Superintendent, Wyoming Correctional Facility, Defendants.

The opinion of the court was delivered by: JOHN T. ELFVIN, Senior District Judge


This action was filed pro se on September 19, 2003 by three inmates in the custody of the New York State Department of Correctional Services ("DOCS") being held at the Wyoming Correctional Facility ("WCF") — namely, Neb Morrow III, Isaac Stroman and David Williamson. The Plaintiffs seek relief under 42 U.S.C. § 1983. Defendants filed a motion for summary judgment on November 19, 2004. Morrow filed a cross-motion for summary judgment on December 28, 2004. These motions were submitted on the papers on January 7, 2005. For the reasons set forth below, Defendants' motion for summary judgment will be granted in part and Plaintiffs' motion for summary judgment will be denied as moot.

Rule 56(c) of the Federal Rules of Civil Procedure ("FRCvP") states that summary judgment may be granted only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In other words, after discovery and upon a motion, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is thus appropriate where there is "no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).*fn2

  With respect to the first prong of Anderson, a genuine issue of material fact exists if the evidence in the record "is such that a reasonable jury could return a verdict for the nonmoving party."*fn3 Stated another way, there is "no genuine issue as to any material fact" where there is a "complete failure of proof concerning an essential element of the nonmoving party's case." Celotex, at 323. Under the second prong of Anderson, the disputed fact must be material, which is to say that it "might affect the outcome of the suit under the governing law." Anderson, at 248.

  Furthermore, "[i]n assessing the record to determine whether there is a genuine issue as to any material fact, the district court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought."*fn4 Nonetheless, mere conclusions, conjecture, unsubstantiated allegations or surmise on the part of the non-moving party are insufficient to defeat a well-grounded motion for summary judgment.*fn5

  The Complaint alleges that Glenn Goord, the Commissioner of DOCS, and Michael Giambruno, the Superintendent of WCF, violated Plaintiffs' fundamental rights to freedom of expression under the First Amendment and equal protection of the laws under the Fourteenth Amendment by promulgating and administering a regulation prohibiting any inmate from wearing their hair in dreadlocks, excepting only those inmates who are practitioners of the Rastafarian religion. Giambruno issued a memorandum dated July 22, 2003 concerning "Inmate Grooming Standards." This memorandum noted that, pursuant to a recent Central Office Review Committee ("CORC") direction:
"Dreadlock hairstyles are only authorized for inmates of the Rastafarian faith. All other inmates are prohibited from wearing dreadlocks."
Enforcement of this regulation was scheduled to begin on September 1, 2003. Compl. at Exh. 5.

  Morrow registered with DOCS as a Rastafarian, but he claims that his actual religious preference is that of the Islamic Faith, which does not require its practitioners to wear dreadlocks.*fn6 When Morrow entered into DOCS custody, he was a practitioner of the Hebrew Israelite faith, which purportedly requires its adherents to wear dreadlocks. Morrow asserts that the DOCS regulation at issue has forced him to choose between cutting his hair and falsely registering as a Rastafarian.

  Defendants argue that Plaintiffs' claims are moot because they are registered as Rastafarians and that the regulations in question therefore permit them to wear dreadlocks. This Court, however, questions whether Plaintiffs' claims should fall within an exception to the doctrine of mootness, similar to the exception for claims that are capable of repetition yet evading review.*fn7 Indeed, part of Plaintiffs' claim appears to be that their religious freedom is being curtailed by the fact that they are forced to register as Rastafarians in order to continue wearing dreadlocks. Consequently, this Court will assume arguendo that Plaintiffs' claims are not moot.*fn8

  Defendants also argue that Morrow failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act of 1995 ("PLRA"), 42 U.S.C. § 1997e(a), which 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." Because Plaintiffs failed to even allege that they exhausted their administrative remedies, this action will be dismissed without prejudice.

  Exhaustion of administrative remedies under the PLRA is not jurisdictional, it is an affirmative defense.*fn9 Consequently, Defendants bear the burden of proof.*fn10 Plaintiffs, however, failed to adequately allege exhaustion. Accordingly, Defendants' request for dismissal on exhaustion grounds would be proper under a FRCvP 12(b)(6) standard as well as a FRCvP 56(c) standard.*fn11

  In New York State, the administrative procedure available to inmates is known as the Inmate Grievance Program ("IGP"), which provides a three-step process for the redress of grievances.*fn12 At the first step, a review of the grievance is conducted by a facility committee of elected peer-inmates and appointed DOCS staff members known collectively as the Inmate Grievance Resolution Committee ("IGRC"). The IGRC will only review grievances that are filed within fourteen days of an alleged occurrence, though exceptions to this time limit may be approved by the IGP supervisor based on mitigating circumstances. If the inmate is unsatisfied with the determination of the IGRC, the second step is to appeal to the superintendent of the facility. If unsatisfied with the determination of the superintendent, appeal may be taken to the CORC, which makes the final administrative determination.

  Morrow submitted a document indicating that CORC denied a grievance concerning the wearing of dreadlocks by non-Rastafarian inmates — a grievance that was filed by an unidentified inmate at the Gowanda Correctional Facility. See Compl., at Exh. 4. Plaintiffs, however, do not claim that they exhausted their administrative remedies.*fn13 Rather, Morrow argues that it would be futile to exhaust his administrative remedy because CORC has already reviewed a similar grievance and that its decision is not likely to change. Futility, however, is not an exception to the PLRA's exhaustion requirement.*fn14 Moreover, "[t]he fact that other inmates filed similar grievances does not excuse plaintiff from filing his own grievance. To allow plaintiff to circumvent the PLRA's exhaustion requirement because other inmates filed similar grievances would be contrary to Congress's intent in enacting the [PLRA]."*fn15 Consequently, Plaintiffs have not exhausted their claims and this action will be dismissed without prejudice.*fn16

  Accordingly, it is hereby ORDERED that Defendants' motion for summary judgment (Docket No. 16) is granted in part, that Plaintiffs' cross-motion for summary judgment (Docket No. 22) is denied as moot ...

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