The opinion of the court was delivered by: Siragusa, J.
Before the Court is an application by Defendant Glenn S. Goord, (Docket No. 71) for summary judgment based upon two arguments: (1) failure to exhaust administrative remedies as required by 42 U.S.C. § 1997e; and (2) failure to state a cause of action for deprivation of his rights under the Eighth Amendment. For the reasons stated below, the Court determines that Plaintiff has failed to comply with the exhaustion requirement, and consequently Defendant's motion to dismiss the case is granted.
On March 25, 2005, Plaintiff filed a complaint alleging that the cell in which he was then housed at Wende Correctional Facility ("Wende") was only 42 square feet, much less than the eighty square feet he alleged was the minimum required for an inmate who, like him, spent 23 hours a day in his cell. He also alleged that his cell had only a bed and toilet with sink, that he stained his sheets when he ate on his bed, that his legal papers had been destroyed when the toilet overflowed, and that he wanted his depression medication levels raised. He amended his complaint on August 4, 2005, citing additional authorities in support of his claim that the cell in which he was housed at Wende was constitutionally too small and, as such, violated his Eighth Amendment right against cruel and unusual punishment.
On March 25, 2005, Plaintiff also filed a grievance with the Inmate Grievance Resolution Committee ("IGRC") complaining that his cell was too small, that he did not have a table or chair, and that he lost legal papers when his toilet flooded. On April 5, 2005, he received a response from Sergeant Jezurski, who wrote, Cell is 8' x 10' or 80 square feet. Directive # 4933 has no provision for table chair. When he eats on his bed he should be more careful. Inmate has no claim concerning lost letters. MHU is responsible for medication not SHU.
Pay him $25,000.00. (Jezurski memo to Grievance Dept. (Apr. 5, 2005) attached to Rodriguez Aff. (Jan. 25, 2008).) The grievance then went to the IGRC, which responded in writing on April 7, 2005 as follows: "The cell is in accordance with directive # 4933." (Id.) Plaintiff did not further appeal his grievance to the superintendent of the correctional facility or to the Central Office Review Committee ("CORC"), as provided for in 7 N.Y.C.R.R. Part 701.
On July 14, 2006, the Court appointed David R. Mowry, Esq., and John Field, Esq., both of the Nixon Peabody firm, as counsel to represent Plaintiff. Subsequently, on January 9, 2008, Kevin T. Saunders, Esq., also from Nixon Peabody, entered his appearance on behalf of Plaintiff. The pending summary judgment motion was filed on February 28, 2007, by Defendant. Plaintiff filed a response in opposition on January 25, 2008, along with what appears to be a pro se memorandum from Plaintiff, and Defendant replied on February 1, 2008. The Court heard oral argument on February 7, 2008.
SUMMARY JUDGMENT STANDARD
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interroga-tories, 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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[a] (Matthew Bender 3d ed.). That is, the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. See Amaker v. Foley, 274 F.3d 677 (2d Cir. 2001); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir.1987) (en banc). Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322--23 (1986).
Once that burden has been met, the burden then shifts to the non--moving party to demonstrate that, as to a material fact, a genuine issue exists. Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is "material" only if the fact has some affect on the outcome of the suit. Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether a genuine issue exists as to a material fact, the court must view underlying facts contained in affidavits, attached exhibits, and depositions in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Moreover, the court must draw all reasonable inferences and resolve all ambiguities in favor of the non-moving party. Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993); Anderson, 477 U.S. at 248-49; Doe v. Dep't of Pub. Safety ex rel. Lee, 271 F.3d 38, 47 (2d Cir. 2001), rev'd on other grounds Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160 (2003); International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir. 1990). However, a summary judgment motion will not be defeated on the basis of conjecture or surmise or merely upon a "metaphysical doubt" concerning the facts. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)); Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir. 1986). Rather, evidentiary proof in admissible form is required. FED. R. CIV. P. 56(e). Furthermore, the party opposing summary judgment "may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City, Department of Corrections, 84 F.3d 614, 619 (2d Cir. 1996).
As indicated above, Defendant has 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 ...