The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
Defendant, Timothy Gatto, moves for summary judgment pursuant to Federal Rules of Civil Procedure ("FRCP") Rule 56(c) in a lawsuit brought by Plaintiff, Michael Lawyer pursuant to 42 U.S.C. § 1983. As grounds for the motion, Defendant alleges that Plaintiff has failed to exhaust his claim as required by the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997(e) (2000). For the reasons that follow, Defendant's motion is denied.
According to Plaintiff, on April 15, 2003, while an inmate at Fishkill Correctional Facility ("Fishkill"), he was "physically assaulted" by Defendant in the office of the Corrections Officers ("CO"). (Plaintiff's Amended Complaint ("Am. Compl.") dated October 23, 2003.) Plaintiff contends that Defendant, CO Gatto, assaulted him because earlier that day Plaintiff had referred to Defendant, in front of two other COs, as "the jerk who has been writing me all the tickets." (See Ex. A to Affidavit of Michelle P. Stone ("Stone Aff."), dated March 14, 2006 at 3-12, Letter from Michael Lawyer, dated April 25, 2003 ("April 25, 2003 Letter").) At around 5:00 PM, Plaintiff was "called out" for his medication. On his way back from picking up his medications, he noticed Defendant sitting at the CO's desk. (Id.) When Plaintiff went to put his pass (to enable him to get medications) back in the appropriate box on the CO's desk, Defendant jumped up and said "get . . . out of my face." (Id.) He then told Plaintiff to follow him into the CO's office, where he accused Plaintiff of calling him a jerk earlier in the day. (Id.) After a short exchange, Defendant allegedly told Plaintiff to "take the first punch, to which Plaintiff replied that he "was not a fighter." (Id.) Defendant hit Plaintiff in the stomach and chest, and then knocked him to the floor, shattering a coffee pot at the same time. Defendant then banged Plaintiff's head into the wall. (See id.) At this point Plaintiff states that the Sergeant came into the room, put handcuffs on him and took him to the Segregated Housing Unit ("SHU"). Plaintiff states that while Defendant was beating him up, the other COs were taunting him, and urging Defendant on. (See id.) A medical report from that day confirms that Plaintiff sustained cuts and abrasions on his right cheek, chest, and left arm. (See Health Assessment Form, dated April 15, 2003, attached to Am. Compl.)
2. The Disciplinary Proceeding
From April 21-28, 2003, a disciplinary hearing was held on a misbehavior report filed by CO Gatto in connection with the events of April 15, 2003. (See Def.'s Local Rule 56.1 Statement ("56.1 St.") ¶ 4; Ex. B to Declaration of Steven N. Schulman ("Schulman Decl."), dated March 14, 2006, Misbehavior Report dated April 15, 2003.) Plaintiff was found not guilty of "creating a disturbance," "interfering with employee" or "threats," (Ex. B to Schulman Decl., Superintendent's Hearing Disposition, dated April 28, 2003.), but was "found guilty of harassment and given 14 days keeplock and loss of privilege as sanction" by Captain Schneider (56.1 St. ¶ 4.) Plaintiff appealed the ruling to the Director of Special Housing/Inmate Disciplinary Program, Donald Selsky, who affirmed the ruling. (See Ex. B to Schulman Decl., Review of Superintendents Hearing ("Tier III Hearing"), dated June, 30, 2003.) Plaintiff also appealed to Superintendent of Fishkill, William Mazzuca. (See Letter from William Mazzuca dated May 9, 2003 (denying Plaintiff's request for a discretionary review), attached to Am. Compl.)
3. Plaintiffs Attempts to Grieve
Plaintiff states that on April 16, 2003, he met with "Captain Pike" to "discuss incident," and that an investigation was promised. (See Ex. B to Affidavit of Michael Lawyer ("Lawyer Aff."), dated June 7, 2006, Journal of Michael Lawyer April 15, 2003-November 26, 2004*fn1 at 1 (recording meeting date on April 16, 2003); Ex. A to Stone Aff., Letter to IGRC, dated July 14, 2003 at 2 (noting that an investigation was promised).) He also states that on April 17, 2003, he met with Sergeant Garino, who also promised an investigation. (See Lawyer Aff. Ex. B at 1; Stone Aff. Ex. A. at 2.) Plaintiff also states that, while confined in the SHU, he forwarded two grievances for filing with the prison's Internal Grievance Review Committee ("IGRC"), one on April 19, 2003 and one on April 28, 2003, neither of which were responded to. (See Lawyer Aff. ¶ 3; Stone Aff. Ex A at 1.)
During his time in the SHU, Plaintiff wrote a long, detailed letter, dated April 25, 2003, describing the incident. (See Lawyer Aff. ¶ 3; Ex. E.) Plaintiff states he sent copies of this letter to Mr. Mazzuca, Superintendent of Fishkill; Glenn Goord, Commissioner of DOC; "Inspector General of DOC"; Attorney General, Elliot Spitzer; and "Mr. Grady," the District Attorney of Dutchess County. (See, Lawyer Aff. Ex. E.)*fn2
Attached to Plaintiff's Amended Complaint is a letter from Superintendent Mazzuca's office, dated May 9, 2003, denying his request for a review of his Tier III hearing; the letter is silent, however, about Plaintiff's claims of harassment by Defendant set forth in the April 25, 2003 letter. (See Am. Compl.) Plaintiff states he was told, by Captain Schneider on July 7, 2003, that Superintendent Mazzuca was forwarding the matter to the Inspector General's office for investigation. (See Lawyer Aff. Ex. B at 5.) A report filed by the Inspector General's office lists a referral date of May 29, 2003. (See Ex. D to Schulman Decl., Report by Inspector Bigit, dated April 29, 2004) Inspector Bigit interviewed Plaintiff on July 8, 2003. (Id. at 1.)
On July 14, 2003, Plaintiff sent a letter to the IGRC, which IGP supervisor Michelle Stone acknowledged receiving, and considered a grievance.*fn3 (See Ex. B to Lawyer Aff., Memorandum from Michelle Stone ("Stone Mem."), dated July 17, 2003.) In this letter, Plaintiff detailed his grievance against Defendant, and the steps he had taken to alert prison officials, including the two grievances he tried to file from SHU and the letter he had sent to Superintendent Mazzuca. (See Stone Aff. Ex. A.) Ms. Stone returned the grievance to Plaintiff on July 17, 2003 because it was filed more than 14 days after the incident. (See Stone Aff. Ex B.) She instructed Plaintiff that, in order for his complaint to be considered, he had to present a letter with "mitigating circumstances" for filing past the deadline. (Id.)
Plaintiff states he met with Ms. Stone on July 23, 2003 and that she told him that he had "done all he could do." (Lawyer Aff. ¶3.) Ms. Stone denies having met Plaintiff. (See Stone Aff. ¶ 6 ("I have no recollection of meeting with plaintiff to discuss his grievance. It is my ordinary practice to record meetings with inmates . . . [my] files . . . contain no note of a meeting.").) She also denies having told him he had done all he could do. (See id. at ¶ 8 ("I would never tell an inmate that he had done all he could without first filing a grievance or that he should bring a federal legal action without first completing the grievance.").)
On August 18, 2003, Plaintiff sent a complaint to Thomas Eagan, at the Central Office Review Committee ("CORC"), who returned the complaint instructing Plaintiff to "submit [the] grievance or appeal directly to the Grievance Clerk at the facility." (Ex C to Stone Aff., Letter from Thomas Eagan, dated August 28, 2003.)
The Inspector General Office's investigation concluded on April 29, 2004, and recommended that the case be closed because "the force that was used to restrain inmate Lawyer was minimal." (See Schulman Decl. Ex. D at 7.) On November 24, 2004, Plaintiff was released from Prison on parole.
Plaintiff's original Complaint was signed on June 19, 2003 and received by the Pro Se office on June 27, 2003. On September 25, 2003, Chief Judge Mukasey ordered Plaintiff to file an amended complaint showing that he had exhausted his administrative remedies. On October 23, 2003, Plaintiff filed his Amended Complaint, in which he detailed the steps he had taken to alert prison officials of his grievance, and asserted that he had exhausted his administrative remedies.
On January 22, 2004 the case was transferred to this judge. Defendant filed his Answer on October 18, 2004, including, as an affirmative defense, Plaintiff's failure to exhaust his administrative remedies. On March 16, 2006, after the completion of discovery, Defendant filed his Motion for Summary Judgment, based on Plaintiff's failure to exhaust his administrative ...