The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
At all times relevant hereto, Plaintiff Mark Larry was an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), and was incarcerated in Franklin Correctional Facility ("Franklin"). Plaintiff, proceeding pro se, alleges violations of his civil rights by four DOCS employees. On October 4, 2001, Plaintiff filed a Complaint pursuant to 42 U.S.C. § 1983 alleging that Defendant Lieutenant P. Byno violated his constitutional rights. On January 20, 2002, Plaintiff filed an Amended Complaint which named Defendants Sergeant James Anctil, Superintendent Roy Girdich, and Commissioner Glenn Goord, in their individual and official capacities. Specifically, Plaintiff alleges that, because he filed complaints with "Superior staff," he was physically assaulted by Byno and was threatened to be killed if he continued to write complaints. See Am. Compl. at ¶ 12. Plaintiff further alleges that Goord failed to address his complaints about the "retaliatory, discriminatory [and] degrading treatment" of Franklin inmates, that Girdich allowed Byno to conduct an investigation into Plaintiff 's claim of misconduct which allowed for further physical injury, and that Anctil was present when Byno conducted his investigation of Plaintiff's claim, but did not attempt to curb Byno's alleged attack on Plaintiff. See Am. Compl. at ¶¶ 12-16. Plaintiff's motion for injunctive relief was denied as moot in a July 29, 2002 order (docket no.34) and Plaintiff's remaining motion is for monetary damages.
Defendants moved to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(1) or 12(b)(6) in light of the Supreme Court's decision in Porter v. Nussle, 122 S.Ct. 983 (2002), which provides that a plaintiff must first exhaust administrative remedies before commencing litigation. On March 18, 2003, the Court granted Defendants' motion and Plaintiff's Complaint was dismissed without prejudice.
On appeal, the Second Circuit vacated the judgment and remanded the case for further proceedings in light of its decision in Hemphill v. State of New York, 380 F.3d 680 (2d Cir. 2004). Specifically, the Second Circuit directed this Court to determine whether administrative remedies were, in fact, "available" to the Plaintiff, or whether estoppel or "special circumstances" exist to excuse Plaintiff's failure to exhaust the administrative remedies in light of Hemphill.
On April 4, 2001, Plaintiff drafted and mailed a letter to Superintendent Girdich, Complaint #109-01, alleging retaliation and intimidation for having written prior complaints.Am. Compl. ¶ 10.
According to Plaintiff, on April 17, 2001, during the investigation of Complaint #109-01, he was assaulted by Byno in retaliation for writing to "Superior staff." Am. Compl. ¶ 12. During the alleged assault, Byno physically forced the Plaintiff against a wall and expressly "threatened to . . . kill" him if he continued to write to the Superintendent. Id. On April 4, April 21, and April 25, 2001, Plaintiff sent letters to Superintendent Roy Girdich. On April 13, 2001, a memorandum was drafted by Superintendent Girdich that acknowledged receipt of the Plaintiff's initial letter.
For purposes of this decision on Defendants' motion to dismiss, the facts as alleged by Plaintiff in his Amended Complaint are accepted as true. Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994) (noting that "a court must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant").
The Prison Litigation Reform Act("PLRA"), 42 U.S.C. § 1997e(a), 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." The Supreme Court held that 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." Porter v. Nussle, 534 U.S. 516, 532 (2002). The PLRA was enacted to "reduce the quantity and improve the quality of prisoner suits" by giving prison officials the first opportunity to deal with inmate complaints by internal processes. Id. at 524-25. The act's "dominant concern [is] to promote administrative redress, filter out groundless claims, and foster better prepared litigation of claims aired in court,"id. at 528, and "clarif[y] the contours of the controversy" once it is litigated. Id. at 525.
Following Nussle, the Second Circuit decided a series of cases on the extent of exhaustion required by inmate plaintiffs to meet the requirements of PLRA. Ortiz v. McBride, 380 F.3d 649 (2004); Abney v. McGinnis, 380 F.3d 663, (2004); Giano v. Goord, 380 F.3d 670, (2004); and Johnson v. Testman, 380 F.3d 691, (2004). In Hemphill the Second Circuit noted that: Read together, . . . [these] decisions . . . suggest that a three-part inquiry is appropriate in cases where a prisoner plausibly seeks to counter defendants' contention that the prisoner has failed to exhaust available administrative remedies as required by the PLRA. 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. The court should also inquire as to whether the defendants may have forfeited the affirmative defense of non-exhaustion by failing to raise or preserve it, 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. 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 the plaintiff nevertheless did not exhaust available remedies, the court should consider whether "special circumstances" have been plausibly alleged that justify "the prisoner's failure to comply with administrative procedural requirements."
Hemphill, 380 F.3d at 686 (citations omitted). This three-part inquiry will ...