The opinion of the court was delivered by: Richard J. Sullivan, District Judge
Plaintiff Tyrone Winston brings this pro se civil rights action pursuant to 42 U.S.C. § 1983 against Richard Woodward, Nicholas Valhos, Charles Starley, Rene Hernandez, and John Does ("Defendants"), claiming that he was subjected to excessive force in violation of the Eighth and Fourteenth Amendments. On July 9, 2007, Defendants moved for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure on the ground that Plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). Plaintiff opposes summary judgment, arguing that he is excused from satisfying the PLRA's exhaustion requirement because: 1) any administrative remedies were functionally unavailable to him as a result of Defendants' misconduct; 2) Defendants are estopped from asserting a defense of nonexhaustion due to their prior misconduct; and 3) special circumstances precluded Plaintiff's compliance. (Pl.'s Opp. ¶¶ 3, 6, 7.)
For the reasons set forth below, Defendants' motion for summary judgment is granted.
At all times relevant to the Complaint, Plaintiff was an inmate in the custody of the New York State Department of Correctional Services ("DOCS") at the Fishkill Correctional Facility ("Fishkill"). (Defendants' Rule 56.1 Statement ("Defs.' 56.1") ¶¶ 1, 16.) Plaintiff alleges that on May 29, 2004, while he was in his cell, Plaintiff was approached by Defendant Starley, who informed him that his cell was going to be searched. (Transcript of October 24, 2005 Deposition of Tyrone Winston ("Winston Dep. Tr.") at 34.) Defendant Starley then requested that Plaintiff place his hands out so that they could be handcuffed. (Id.) Plaintiff admits that he initially refused to comply with Defendant Starley's orders. (Id.) Upon his refusal Plaintiff was moved into the recreation pen, which was connected to the cell. (Id.) After being notified that Plaintiff refused to cooperate with the cell search, Defendant Woodward then entered the recreation pen and directed Plaintiff to put his hands on the wall. (Id. at 31.) Plaintiff claims that he complied with Defendant Woodward's orders. (Id.)
Plaintiff further alleges that, notwithstanding his compliance with the officers' directions, Defendants physically searched him. (Id. at 32.) He also claims that Defendant Valhos hit him in his testicles and that he was forcefully thrust onto the floor. (Id.) While on the floor, Plaintiff alleges that Defendant Woodward bent his left pinky finger backwards while he was being handcuffed, thereby dislocating it. (Id. at 32-33.) Additionally, he alleges that Defendant Valhos put his hand over Plaintiff's mouth to prevent him from shouting as a result of the pain he felt from his finger being dislocated, whereupon Plaintiff bit down on Valhos' finger. (Id. at 33.) Plaintiff asserts that following this altercation he was sent to receive medical treatment for his injury. (Id.) Thereafter, Plaintiff commenced a grievance proceeding against Defendants.
Under the PLRA, an inmate must exhaust his administrative remedies prior to initiating a suit in federal court. See Porter v. Nussle, 534 U.S. 516, 532 (2002); see also Macias v. Zenk, 495 F.3d 37, 40 (2d Cir. 2007); Ruggiero v. County of Orange, 467 F.3d 170, 173 (2d Cir. 2006); Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006). DOCS has established an Inmate Grievance Program ("IGP"), the purpose of which is to provide inmates with an "orderly, fair, simple and expeditious method of resolving grievances . . . ." 7 N.Y.C.R.R. § 701.1(a); see also Abney v. McGinnis, 380 F.3d 663, 668-69 (2d Cir. 2004); Cruz v. Jordan, 80 F. Supp. 2d 109, 117-18 (S.D.N.Y. 1999).
It is uncontested that the particular grievance procedure available to Plaintiff at the time of the incident involved a three-step process.*fn1 (Defs.' 56.1 ¶ 5.)*fn2 First, the formal grievance process is initiated by the filing of a written complaint with the Inmate Grievance Resolution Committee ("IGRC") within fourteen work days from the date of the alleged incident.*fn3 (Id.) If the IGRC does not grant the requested relief, the second step of the administrative procedure is the filing of an appeal with the Superintendent of the facility within four days after receipt of the IGRC's written response. (Id.); see also 7 N.Y.C.R.R. § 701.1(b). If the Superintendent does not grant the requested relief, the third step is to appeal to the Central Office Review Committee ("CORC") within four working days after receipt of the Superintendent's written response. (Defs.' 56.1 ¶ 5.) It is only after exhausting all three levels of this administrative review process that a prisoner may file a federal action and seek relief pursuant to § 1983, though failure to exhaust may be later deemed justified under several exceptions. Porter, 534 U.S. at 524; see also Giano v. Goord, 380 F.3d 670, 677-78 (2d Cir. 2004).
There are also special procedures that a prisoner must follow when his or her grievance involves a claim of harassment, to ensure that harassment claims are submitted directly to the Superintendent. See 7 N.Y.C.R.R. § 701.11. Harassment is broadly defined in the IGP as any allegation involving employee misconduct - specifically "[e]mployee misconduct meant to annoy, intimidate, or harm an inmate . . . ." § 701.11(a). In such instances, the inmate is required to report the occurrence to the immediate supervisor of the employee alleged to have engaged in the misconduct. (Defs.' 56.1 ¶ 7.)
After the grievance is filed, it is forwarded, along with supporting documents, to the Superintendent by the close of the same business day on which it was filed, in order to accelerate the grievance procedure. See 7 N.Y.C.R.R. § 701.11(b). Upon review of the harassment grievance, if it is determined that there is a bona fide harassment issue, the Superintendent may initiate an in-house investigation, request an investigation by the Office of the Inspector General or request an investigation by the State Police. See 7 N.Y.C.R.R. § 701.11(b)(4). Regardless of whether an investigation is initiated, the Superintendent must render a decision within twelve business days. See 7 N.Y.C.R.R. § 701.11(b)(5). If the Superintendent fails to respond within the time limit, the inmate may then appeal to the CORC. See 7 N.Y.C.R.R. § 701.11(b)(6), (7).
Additionally, DOCS regulations require that a representative of IGRC visit Plaintiff's housing unit at Fishkill at least once a week. (See Defs.' 56.1 ¶ 17); see also 7 N.Y.C.R.R. § 304.14(b); N.Y.C.R.R. § 701.13(c). During such a visit, the IGRC representative is required to announce his presence at the units and to respond to any inquiries by inmates regarding grievances. (Declaration of Michelle Stone ("Stone Decl.") ¶ 30.) If an inmate advises an IGRC representative that he had attempted to appeal a grievance to the CORC but his mail was tampered with, he would be advised that he could re-submit his appeal. (See Defs.' 56.1 ¶ 31.)
On June 16, 2004, within fourteen days of the alleged May 29, 2004 incident, Plaintiff timely filed a grievance, claiming that the Defendants used excessive force against him, causing his left pinky to be fractured as well as asserting claims of harassment, mail tampering, and excessive searches of his cell. (See Defs.' 56.1 ¶ 8; Stone Decl. ¶ 8, Ex. A.) Since Plaintiff's grievance involved a charge of harassment, it was forwarded to the Superintendent's office for investigation on the day in which it was filed. (See Defs.' 56.1 ¶ 9.) An investigation was conducted, which included an interview of Plaintiff as well as the collecting of statements from all personnel allegedly involved in the incident. (See id. ¶ 10.)
On June 29, 2004, prior to receiving an initial determination from the grievance office, Plaintiff attempted to "appeal" his case on the grounds that he had not yet received such an initial determination. (See id. ¶ 12; see also Stone Decl. ¶ 13, Ex. E.) Specifically, he filed his appeal on an Inmate Grievance Compliant form, describing his problem as wanting to "appeal" his initial June 14, 2004 grievance. (See Defs.' 56.1 ¶ 12.) In response, Plaintiff was advised of the proper procedure to appeal and also that he would receive the Superintendent's timely response. (See id. ¶ 13; see also Stone Decl. ¶ 14, Ex. F.)*fn4
On June 30, 2004, the Superintendent rendered his decision denying Plaintiff's grievance.*fn5 (See Defs.' 56.1 ¶¶ 11, 14; see also Stone Decl. ¶ 11, Ex. D.) Plaintiff does not dispute that he received the decision on or about June 30, 2004. (Defs.' Mem. at 6.) Plaintiff had four business days thereafter to file an appeal to theCORC. (Defs.' 56.1 ¶ 14.) There is nothing in the record demonstrating that Plaintiff filed that appeal, or made any other attempts to appeal the Superintendent's decision to the CORC. (Id. ¶ 15.)
According to Fishkill's visitor logbook entries, between June 30, 2004 and August 31, 2004, IGRC representatives engaged in regular visits to the facility.*fn6 There is nothing in the record indicating that Plaintiff notified the IGRC representative that he was prevented from filing an appeal. (Id. ¶ 22.) Additionally, there is nothing in the record indicating that Plaintiff expressed a concern regarding his grievance to ...