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United States District Court, S.D. New York

October 7, 2005.

PERRY STRONG, Plaintiff,

The opinion of the court was delivered by: PAUL CROTTY, District Judge


Plaintiff Perry Strong brought this action under 42 U.S.C. § 1983, alleging that Defendants Earnest Edwards and C. Wilson, New York State Department of Corrections employees at Otisville Correctional Facility ("Otisville"), violated his constitutional rights while he was an inmate at the Otisville. Plaintiff's Complaint fails to specifically identify which of his constitutional rights were allegedly violated. Instead, Plaintiff raises a number of claims, including: (i)transfer to the Special Housing Unit at Otisville in retaliation for exercising his First Amendment rights; (ii) use of excessive force and cruel and unusual punishment by forcing him to ingest an unidentified "chemical substance," in violation of his Eighth Amendment rights; and (iii) placement in Involuntary Protective Custody.

Defendants now move pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss this action on three grounds: (1) Plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997(e)(a) ("PLRA"); (2) Plaintiff fails to state a claim upon which relief may be granted; and (3) Plaintiff's claims are barred by the Eleventh Amendment because Defendants may not be sued in their official capacity for monetary damages and any injunctive relief sought by Plaintiff is now moot since Plaintiff is no longer housed at Otisville. After careful review of all the moving papers, including all the manifold allegations and claims alleged by plaintiff, it is clear that Plaintiff failed to exhaust his administrative remedies. These remedies were clearly available to Plaintiff and the papers make clear that Plaintiff frequently resorted to them. He did not do so in a timely fashion with respect to these allegations, however. Therefore, the Court lacks subject matter jurisdiction to entertain the merits of this action. Defendants' motion to dismiss is GRANTED.


  Pro se Plaintiff Perry Strong ("Strong") is currently incarcerated at the Riverview Correctional Facility ("Riverview") in St. Lawrence County. At the time of the events alleged in the Complaint,*fn1 Strong was housed at the Otisville Correctional Facility in Orange County. (Compl. ¶ 2.) Defendant Earnest Edwards ("Edwards") was the Superintendent of Otisville,*fn2 (Compl. ¶ 4), and Defendant C. Wilson ("Wilson") worked as a correctional officer. (Compl. ¶ 5).

  The crux of Strong's Complaint appears to be an incident that occurred on or about November 29, 2001, at which time Strong alleges that he was forced by an unidentified prison official to ingest an unidentified chemical substance. (Compl. at p. 3.) Strong asserts that this unidentified chemical substance caused him "immediate and irreparable" harm, including the cancer with which he was diagnosed years later. (Compl. at pp. 4-5; Plf.'s Resp. at pp. 10, 12, 15-16.) In addition, Strong alleges that, after he ingested the chemical substance, he was visited in his cell by unidentified prison officials who threatened him and used racial epithets. (Compl. at p. 3; Pl.'s Resp. at p. 2, 9-10.)

  Strong does not assert that either Edwards or Wilson was involved in any way in the alleged activities. They are named as defendants simply because they "had [him] submitted to" the Special Housing Unit ("SHU"), where the alleged incidents occurred. Strong further alleges that Edwards and Wilson had him committed to SHU as a retaliatory measure, after Strong filed three grievances complaining about the way Wilson treated inmates.

  Strong has a long history of filing complaints against the Otisville staff. On April 1, 2001, almost eight months before the incidents alleged in Strong's Complaint, Strong submitted a complaint letter to Superintendent Edwards. (Defs.' Mot. to Dismiss, Johnson Decl., Exh. I.) In this complaint letter, Strong asserted general allegations of "discriminatory practices" by Otisville staff. (Id.) On May 16, 2001, July 18, 2001, and September 10, 2001, Strong submitted three letters to the New York Commission of Investigation alleging inappropriate conduct by Wilson. (Defs.' Reply, Second Johnson Decl., Exh. J.) On February 20, 2002, after his transfer to Riverview, Strong filed a grievance complaining that the two correction officers who transferred and admitted Strong to the SHU assaulted Strong during the transfer. (Grievance #RV-6097-02, Defs.' Reply, Second Johnson Dec., Exh. L.)

  Despite Strong's extensive practice of filing complaints, none of these many grievances alleged forced ingestion of an unidentified chemical substance by Edwards or Wilson, nor is any of the other alleged wrongful conduct in the Complaint charged against either individual defendant. Only much later did Strong first grieve the incidents alleged in this Complaint. In a grievance dated September 3, 2003, Strong alleged that Wilson had him committed to SHU. (D.'s Reply, Second Johnson Decl., Exh. N.) Strong further alleged that while he was in SHU, "some officials tried to murder him," by putting a "`chemical substance' in his food in which he consumed," and "later night callers" came to his cell yelling racial slurs and threatening him to keep his mouth shut. (Id.) The grievance does not specifically name Edwards or Wilson as participating in either incident. (Id.) Strong submitted another grievance on November 9, 2004 advancing nearly identical allegations. (D.'s Reply, Second Johnson Decl., Exh. O.) Again, Strong failed to explain how Edwards and Wilson were connected to any of the alleged incidents. (Id.) In his Complaint, Strong makes reference to another grievance of December 30, 2003, Grievance #RV-7266-04, in which he presented the facts related to his Complaint, (Compl. at p. 2.), but Strong never provided the Court with a copy of this grievance or proof that this grievance actually exists.

  Strong submitted his complaint to the pro se office for the Southern District of New York on November 22, 2004. The pro se office filed the complaint on Strong's behalf on January 6, 2004. Defendants now move to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).


  The PLRA 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." 42 U.S.C. § 1997e(a). This provision "applies to all prisoners seeking redress for prison circumstances or occurrences," regardless of whether a prisoner complains about general prison conditions or about a specific incident. Porter v. Nussle, 534 U.S. 516, 520 (2002); Lawrence v. Goord, 304 F.3d 198, 200 (2d Cir. 2002). It is well settled that this exhaustion requirement is mandatory. Porter, 534 U.S. at 520; Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir. 2004).

  The New York State DOCS has its own internal administrative procedure. DOCS regulations allow inmates to file grievances to resolve complaints about DOCS policies, as well as "harassment grievances" for "allegations of employee misconduct meant to annoy, intimidate, or harm an inmate." See 7 N.Y.C.R.R. §§ 701.2(a), 701.2(e), 701.7, and 701.11. This process, known as the "Inmate Grievance Program" ("IGP"), is intended "to reduce the quantity and improve the quality of prisoner suits" and afford "corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case." Porter, 534 U.S. at 524-25.

  The DOCS IGP procedure has three steps. See NY Correction Law § 139 (McKinney's 2003). First, an inmate must file a harassment grievance with the Inmate Grievance Review Committee ("IGRC") at his facility. 7 N.Y. Codes R. & Reg. ("NYCRR") § 701.7(a)(1); see also Directive 4040, New York State Department of Corrections, June 8, 1998 (setting forth the inmate grievance procedure in New York prisons). A grievance is timely filed if it is filed within fourteen (14) days of the alleged incident. 7 NYCRR § 701.7(a)(1). If the inmate failed to file the grievance within the fourteen-day window, the IGRC will still consider the grievance timely filed if the inmate presents mitigating circumstances that justify the delay. Id. If the IGRC is unable to resolve the dispute to the satisfaction of the grievant, a hearing must take place within seven (7) days of the IGRC's receipt of the grievance. Id. After the hearing, the IGRC issues a decision or dismisses the grievance. Id. Second, within two days of the inmate's receipt of the IGRC's decision, or if the IGRC does not respond to the inmate's grievance within the specified time period, the inmate may take an appeal to the Superintendent, who independently reviews the grievance and issues a response. Id. §§ 701.7(b)(1), 701.8. Third, if the inmate is unsatisfied with the Superintendent's decision, the inmate may take an appeal to the Central Office Review Committee. Id. § 701.7(c)(1).

  An inmate must first seek administrative relief under the DOCS IGP, and pursue it through all levels of appeal, before he may file an action in federal court. Martinez v. Williams R., No. 04 Civ. 1938 (WCC), 349 F. Supp. 2d 677, 682 (S.D.N.Y. 2004); Soto v. Belcher, No. 01 Civ. 7520 (VM), 339 F. Supp. 2d 592, 595 (S.D.N.Y. 2004); see also Taylor v. New York State Dept. of Corrections, No. 03 Civ. 1929 (PKC), 2004 WL 2979910, at *4-5 (S.D.N.Y. Dec. 22, 2004) (stating that defendants could raise exhaustion as a defense in their motion to dismiss where plaintiff inmate failed to adequately plead that he took all required appeals through the IGP process). If an inmate files a federal lawsuit without first exhausting the DOCS IGP procedure, the Court must dismiss the action, as the exhaustion requirement is mandatory and may not be waived.

  Plaintiff Perry Strong did not grieve the allegations set forth in his Complaint through the DOCS IGP process. To the extent that Strong did raise the retaliatory transfer, forced ingestion of a chemical substance, and night visits by prison officials yelling racial epithets — the allegations that give rise to this action — in his grievances, none of these grievances specifically connected the defendants in this action, Superintendent Earnest Edwards and Correction Officer C. Wilson, to the allegations set forth in the Complaint. This Circuit has expressly stated that, "[i]n order to exhaust . . . inmates must provide enough information about the conduct of which they complaint to allow prison officials to take appropriate responsive steps." Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004) (quoting Porter, 534 U.S. at 524-25). Thus, none of Strong's prior grievances are sufficient to meet the exhaustion requirement. In addition, the grievances filed by Strong that mention the conduct complained of were filed long past the fourteen-day period required under the IGP. Strong represents in his Complaint that the alleged incidents took place in November 2001, yet he did not file a grievance complaining of these incidents until late 2003 and 2004. Strong gives no mitigating circumstances to justify this delay. Thus, even if Strong's grievances were sufficiently specific, they were not timely.

  Furthermore, Strong failed to provide any evidence that he appealed these grievances to the Superintendent and the Central Office Review Committee. An inmate must pursue the DOCS IGP process through all levels of appeal before filing a federal action. Martinez, 349 F.Supp.2d at 682; Soto; 339 F. Supp. 2d at 595. Since Strong did not appeal his grievances as required, even if Strong's grievances were otherwise proper (i.e., sufficiently specific and timely), this Court would still be required to dismiss this action.

  In sum, the PLRA required Strong to grieve the allegations set forth in his Complaint through the internal DOCS IGP process before filing this action. Strong failed to do so. Accordingly, the Court must dismiss this action.


  Defendants motion to dismiss is GRANTED. The Clerk of the Court is directed to close the file in this action.



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