The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff, Vladimir Campos, appearing pro se, commenced this action under 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), alleges that defendants, who at all relevant times were correctional officers employed by DOCS at Attica Correctional Facility, violated plaintiff's constitutional rights by failing to protect him from assault by a fellow inmate on July 16, 2003. Plaintiff also alleges that defendants used excessive force against plaintiff on that same date.
Defendants have moved for summary judgment on the ground that plaintiff has failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). For the reasons that follow, defendants' motion is granted and the complaint is dismissed.
The PLRA provides in part 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." Exhaustion of administrative remedies is thus a prerequisite to an inmate's § 1983 action arising out of prison conditions or events. Porter v. Nussle, 534 U.S. 516, 524 (2002).
New York State regulations provide for a three-step administrative review process of prisoner grievances. See 7 N.Y.C.R.R. § 701.7. First, "an inmate must submit a complaint to the Grievance Clerk within 14 calendar days of an alleged occurrence ... ." 7 N.Y.C.R.R. § 701.7(a)(1). The grievance is then submitted to the inmate grievance resolution committee ("IGRC") for investigation and review.
If the IGRC denies the grievance, the inmate may appeal to the superintendent of the facility "by filing an appeal with the IGP [Inmate Grievance Program] clerk." 7 N.Y.C.R.R. § 701.7(b)(1). After the superintendent issues his decision, the inmate may appeal to the Central Office Review Committee ("CORC"), which makes the final administrative determination. 7 N.Y.C.R.R. § 701.7(c). In general, it is only after exhausting all three levels of the administrative review that a prisoner may seek relief pursuant to 42 U.S.C. § 1983 in federal court. Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001); Santos v. Hauck, 242 F.Supp.2d 257, 259 (W.D.N.Y. 2003).
Here, the record shows that plaintiff filed a grievance ("the '03 grievance") about the July 16 incident on August 14, 2003. See Dkt. #26 at 8. That grievance, which was assigned number A-45552-03, complained of a "lack of security" in connection with the July 16 incident. Id. at 10. On August 27, 2003, the IGRC denied the grievance, stating that plaintiff "must realize that security cannot prevent everything ... ." Id. at 9.*fn1
On January 5, 2004, plaintiff filed another grievance ("the '04 grievance"), raising the same claims about the July 16 incident. See id. at 21. In that grievance, which was assigned number A-46225-04, plaintiff also alleged that he had appealed the '03 grievance to the facility superintendent and to CORC, but that he never got any response. Id.
The IGRC denied the '04 grievance, stating that its records indicated that there was no record that plaintiff had ever appealed the IGRC's decision on the '03 grievance. Id. at 20. It is undisputed that plaintiff did appeal the '04 grievance all the way to CORC, which affirmed the denial of the grievance on February 18, 2004, on the ground that plaintiff "had the opportunity to appeal the IGRC recommendation" on the '03 grievance, but failed to do so. Id. at 13.
Defendants contend that the complaint should be dismissed because of plaintiff's failure to exhaust his administrative remedies. Specifically, defendants assert that plaintiff never appealed the '03 grievance. Defendants also argue that plaintiff's failure in that regard was not remedied by his exhaustion of the '04 grievance, which was properly denied based on plaintiff's failure to appeal the '03 grievance.
In response to defendants' motion, plaintiff alleges that he attempted to appeal the '03 grievance, but that his attempts were thwarted by defendants' interference with his outgoing mail. In support of that assertion, plaintiff has submitted a copy of a one-page letter addressed to the Attica Superintendent dated September 28, 2003, in which plaintiff stated that he was "hereby appealing the decision of the IGRC ... ." Dkt. #30-3 at 9. Plaintiff also stated in the letter that he had been "denied the right to exhaust [his] administrative remedies" because certain officers [including the defendants in this lawsuit] "have been stoping [sic] my out-going mail." Id.
Curiously, however, the letter states that plaintiff was appealing the IGRC's denial of "Griev # A-46225-04"--i.e., the '04 grievance, which was not filed until January 5, 2004, more than three months after the purported date of this letter.*fn2 The letter also clearly references the IGRC's stated reasons for denying the '03 grievance; plaintiff wrote that the IGRC's denial "states that I never appealed any further." Absent some psychic abilities on plaintiff's part, of which the Court has no evidence before it, he clearly could not have known in September 2003 that in the following January, he would file another grievance numbered A-46225-04, and that the IGRC would deny that grievance on the ground that plaintiff had not appealed the '03 grievance.
The conclusion is inescapable, then, that plaintiff has knowingly submitted a falsified exhibit in an attempt to rebut defendants' contention that he never appealed the '03 grievance. That conclusion is reinforced by some of the other contents of the purported September 28 letter, which rather transparently appear designed to rebut some of defendants' other arguments as well, such as defendants' assertions that plaintiff's grievances failed to name the defendants in this action, and that the grievances failed to allege the use of excessive force against plaintiff by any correctional officers. For example, the letter states that plaintiff was "denied the right to exhaust [his] administrative remedies do [sic] to Officer Miller, Officer Smith, Officer Giller and ... Sgt. ...