The opinion of the court was delivered by: Scullin, Senior Judge.
MEMORANDUM-DECISION AND ORDER
Currently before the Court are Plaintiff's objections to Magistrate Judge DiBianco's July 8, 2009 Report-Recommendation in which he recommended that the Court grant Defendants' motion for summary judgment because Plaintiff failed to exhaust his administrative remedies. On July 18, 2009, Plaintiff objected to this finding, alleging that Defendants' untimely processing of the grievance he filed with the Department of Corrections rendered the administrative remedies "unavailable." See Dkt. No. 45 at 1.
On June 12, 2006, Plaintiff pro se filed this action under 42 U.S.C. § 1983, alleging violations of his rights under the Eighth Amendment. Plaintiff alleged that he was exposed to friable asbestos during his incarceration at Auburn Correctional Facility and that, because of this exposure, Defendants violated his Eighth Amendment rights.
Specifically, Plaintiff contended that, while he was incarcerated at Auburn Correctional Facility ("ACF"), between July 2001 and May 2005, facility personnel did not follow proper procedures when initiating asbestos removal or other construction projects, causing friable asbestos to "contaminate the air." See Complaint at ¶¶ 1-2. He further alleged a variety of precautions that facility personnel did not take, resulting in asbestos contamination. See id. at ¶¶ 2-6. Moreover, Plaintiff complained that, during various construction projects at Auburn Correctional Facility, he was required to load "asbestos-laden" materials into dump trucks and that these materials were often packaged in regular plastic bags, which would open, causing him to be covered in asbestos and releasing asbestos fibers into the air. See id. at ¶ 8.
Plaintiff also claimed that, from April 2004 until May 2005, he worked as a porter for Industry/Corcraft at Auburn Correctional Facility. See id. at ¶ 9. Plaintiff contended that, during that time, he was unnecessarily exposed to more asbestos while he cleaned elevator shafts and a boiler room. See id. at ¶ 10. Finally, Plaintiff asserted that he was further exposed to asbestos when heating pipes were removed from A-Block and E-Block. See id. at ¶¶ 11-12. Plaintiff alleged that the asbestos-related violations were so "numerous" between 2001 and 2005 that all the supervisory officials named in the complaint must have been aware of the situation and either "participated" in the violations or "failed to act." See id. at ¶¶ 13-15. These supervisory officials include both individuals who worked at Auburn Correctional Facility, as well as former Commissioner Glenn Goord and former Governor George Pataki. See id. at ¶¶ 14-15.
On September 30, 2008, Defendants filed a motion for summary judgment. In support of their motion, they claimed that (1) Defendant Pataki was never served and must be dismissed; (2) the "Doe" Defendants were neither identified nor served and must be dismissed; (3) the official capacity claims must be dismissed; (4) Plaintiff failed to exhaust administrative remedies; and (5) the named Defendants were not personally involved in any alleged constitutional violations. Magistrate Judge DiBianco recommended that the Court grant Defendants' motion for summary judgment, explaining that, because there are no special circumstances that justify Plaintiff's failure to properly exhaust his claims, the Court is required to dismiss the complaint for failure to exhaust administrative remedies. See Dkt. No. 44 at 9.
Citing Booth v. Churner, 532 U.S. 731, 738 (2001), Plaintiff urges that a "remedy for contamination by exposure to friable asbestos . . . was not available to plaintiff," thereby excusing his failure to exhaust his administrative remedies. See Dkt. No. 45 at 1. Plaintiff further argues that he was prevented from using the grievance procedures because his grievance was "not only not answered but 'disappeared.'" See id. (citation omitted). Finally, he urges that he made "good faith" efforts to have the prison system address his grievance.
The Prison Litigation Reform Act, ("PLRA"), 42 U.S.C. §1997e(a), requires an inmate to exhaust all available administrative remedies prior to bringing a federal action. See Booth, 532 U.S. at 740-41. This "requirement 'applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes,'" and regardless of the subject matter of the claim. See, e.g., Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004) (citation omitted). Inmates must exhaust their administrative remedies even if they are seeking only money damages that are not available in prison administrative proceedings. See id. The failure to exhaust is an affirmative defense that defendants must raise. See Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004) (citation omitted). As an affirmative defense, it is the defendants' burden to establish that the plaintiff failed to meet the exhaustion requirements. See Giano, 380 F.3d at 675 (citation omitted).
In Jones v. Bock, 549 U.S. 199 (2007), the Supreme Court held that, for an inmate to exhaust his administrative remedies, he must complete the administrative review process in accordance with the applicable state rules. See id. (citation omitted). In Woodford, the Court held that "proper" exhaustion means that the inmate must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a prerequisite to bringing suit in federal court. See Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).
The grievance procedure in New York is a three-tiered process. The inmate must first file a grievance with the Inmate Grievance Resolution Committee ("IGRC"). See 7 N.Y.C.R.R. § 701.5(a)(1) and (b). At the time that Plaintiff's incident arose, an inmate had fourteen (14) days within which to file a grievance.*fn1 An inmate may appeal an adverse decision of the IGRC to the Superintendent of the Facility. See id. § 701.5(c). An inmate may appeal an adverse decision at the Superintendent's level to the Central Office Review Committee ("CORC"). See id. § 701.5(d).
In his complaint, Plaintiff alleges that, while he was incarcerated at Upstate Correctional Facility in May of 2006, he filed a grievance concerning his alleged asbestos exposure. See Complaint at ¶ 17. Plaintiff claims that, when he did not get a response, he wrote a follow-up letter to the Grievance Department at Upstate Correctional Facility. See id. When Plaintiff did not get an answer to his follow-up letter, he considered this a "constructive denial" of his grievance. See id. at ¶¶ 17-18. Plaintiff states that, as a result of this "constructive denial," on ...