The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
Plaintiff commenced this action, pro se, in 2000. Ultimately, the consolidated action was narrowed to plaintiff's claims against Officer C. Charrone and Nurse Jennifer Brinks regarding an alleged assault, which plaintiff asserts occurred on or about July 9 or 10, 2000 (as set forth in Docket No. 1, the operative pleading for the action). Defendants have moved to amended their answer to include the affirmative defense of a lack of exhaustion, and have moved for summary judgment. For the reasons discussed below, Defendants' motions are granted and the action is dismissed.
The motion to amend the Answer is granted. The delay in asserting the defense of failure to exhaust does not unduly prejudice plaintiff. Plaintiff has been afforded an opportunity to respond in opposition to the motion and has raised no objection. "Because this amendment to the answer occurred before trial, did not require additional discovery, and was not premised on bad faith, the district court acted within its discretion to allow the amendment." Belgrave v. Pena, 254 F.3d 384, 387(2d Cir. 2001) (citing Monahan v. N.Y. City Dep't of Corr., 214 F.3d 275, 283 (2d Cir. 2000); Forbus v. Sears Roebuck & Co., 30 F.3d 1402, 1405 (11th Cir. 1994) (allowing amendment of complaint to include affirmative defense and stating that "[i]n the absence of undue delay, bad faith, dilatory motive or undue prejudice, leave to amend is routinely granted"); Francis v. City of N.Y., 235 F.3d 763, 768 (2d Cir. 2000) (finding waiver after New York City failed to raise administrative exhaustion "in their answer" and waited to raise it "until after judgment had been entered" following a jury verdict)). Accordingly, upon review of the pleadings and considerations of the relevant factors, the Court in its discretion grants the amendment of the Answer to include the affirmative defense of failure to exhaust.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In deciding a motion for summary judgment, the court "must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor." Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir. 2000) (quotations omitted).
Where, as here, the plaintiff is proceeding pro se, the court must "read the pleadings . . . liberally and interpret them to raise the strongest arguments that they suggest." Corcoran v. New York Power Auth., 202 F.3d 530, 536 (2d Cir. 1999) (quotations omitted). "Nonetheless, '[p]roceeding pro se does not otherwise relieve a litigant of the usual requirements of summary judgment, and a pro se party's bald assertions, unsupported by evidence, are insufficient to overcome a motion for summary judgment."' Rodriguez v. Ames, 224 F. Supp. 2d 555, 559 (W.D.N.Y. 2002), quoting Rodriguez v. Hahn, 209 F. Supp. 2d 344, 348 (S.D.N.Y. 2002).
Defendants have moved for summary judgment on two grounds -- failure of plaintiff to exhaust the administrative procedures, and failure to set forth a cause of action. According to 42 U.S.C. § 1997e(a), as it was amended by section 803 of the Prison Litigation Reform Act of 1996 ("PLRA"), "[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 . . . until such administrative remedies as are available are exhausted." "[T]he 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). Further, the requirement to exhaust must be met even if the state administrative procedures do not provide for recovery of money damages. Booth v. Churner, 532 U.S. 731 (2001); and see Ruggiero v. County of Orange, 467 F.3d 170, 177 (2d Cir. 2006).
Here, Defendants claim that Plaintiff failed to fully exhaust, and Plaintiff does not argue that he complied with the formal grievance process through final appeal. Although, the failure to exhaust is not jurisdictional, the exhaustion requirement does gives rise to an affirmative defense. Jones v. Bock, - U.S. -, 127 S.Ct. 910, 921 (January 22, 2007); Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir. 1999) ("[A] defendant in a prisoner § 1983 suit may also assert as an affirmative defense the plaintiff's failure to comply with the PLRA's requirements."). The Second Circuit decided a series of cases examining the scope of the PLRA's exhaustion requirement. See Giano v. Goord, 380 F.3d 670 (2d Cir. 2004); Abney v. McGinnis, 380 F.3d 663 (2d Cir. 2004); Johnson v. Testman, 380 F.3d 691 (2d Cir.2004); Ortiz v. McBride, 380 F.3d 649 (2d Cir. 2004); Ziemba v. Wezner, 366 F.3d 161 (2d Cir. 2004); Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004). More recently, the United States Supreme Court has addressed exhaustion. Jones v. Bock, - U.S. -, 127 S.Ct. 910, 921 (January 22, 2007); Woodford v. Ngo, - U.S. -, 126 S.Ct. 2378, 2387-88 (2007).
The Second Circuit discussed the current application of these cases to a prisoner civil rights case in Macias v. Zenk, 495 F.3d 37 (2d Cir. 2007). In discussing Woodford, the Second Circuit noted that making defendants aware of a complaint was not enough to properly exhaust; "notice alone is insufficient" and concluded that "to the extent that Braham [v. Clancy, 425 F.3d 177, 183 (2d Cir.2005)] allowed for less than 'proper exhaustion' of claims under the PLRA, Braham has been overruled." Macais, 495 F.3d 37 at 44. Proper exhaustion means "that a prisoner must 'compl[y] with the system's critical procedural rules' because '[a] prisoner who does not want to participate in the prison grievance system will have little incentive to comply with the system's procedural rules unless noncompliance carries a sanction' and '[t]he benefits of exhaustion can be realized only if the prison grievance system is given a fair opportunity to consider the grievance.'" Macais, 495 F.3d 37 at 41 (quoting Woodford at 2387-88).
In addition to requiring compliance with the grievance procedures, the Second Circuit reviewed the factors to address in considering ...