The opinion of the court was delivered by: Richard J. Holwell, District Judge
MEMORANDUM OPINION AND ORDER
This is one of several actions Cesar Mateo ("Mateo"), a prisoner currently incarcerated at the Great Meadow Correctional Facility ("Great Meadow"), has brought pro se against various prison officials under 41 U.S.C. § 1983 ("Section 1983"). In this case, Mateo is suing two employees of the New York State Department of Correctional Facilities ("DOCS"): Corrections Sergeant Tracy Alexander ("Alexander") and Corrections Officer Jeffrey Erns ("Erns"). Both defendants worked at the Green Haven Correctional Facility ("Green Haven") while Mateo was incarcerated there from 2003 to 2008. Mateo raises claims of harassment and retaliation against Erns and supervisory liability against Alexander. Defendants have moved to dismiss the complaint in its entirety. For the reasons that follow, the Court grants defendants' motion.
For purposes of this motion, the following facts are taken as true.
Mateo first filed this lawsuit in the Northern District of New York, on August 18, 2008.*fn1 (Mateo v. Ficsher, No. 08-0881 (NAM) (N.D.N.Y. filed Aug. 18, 2008), Compl.) Because the complaint's allegations involved incidents at Green Haven, which is in this district, the case was transferred here. (Mateo v. Ficsher, No. 08-0881 (NAM) (N.D.N.Y. filed Aug. 18, 2008), Order dated Aug. 26, 2008.)
Mateo's claims stem from three incidents that allegedly occurred in 2008. In the first, on June 16, 2008, defendant Erns "approached" Mateo, "looked at [his] property," and said Mateo had "too much 'shit.'" (Compl. ¶ 9.) Erns then searched Mateo's property, without his permission and in violation of "established procedure." (Id.) Erns also leveled a few unfriendly words at Mateo, like "shut that fuck up or I will write you a ticket for interfering with the search," and "Jackass." (Id.) Mateo filed a grievance that day, but it "was not processed"; he filed a second grievance a few days later, which he says was processed but never investigated. (Id. ¶ 10.)
The second incident occurred on June 21, 2008, when Erns made Mateo "wait a long period of time" to use a toilet. (Id. ¶ 11.) Mateo heard Erns tell co-workers that Mateo "is the inmate who wrote the grievance against me," implying that Erns' actions were retaliatory. (Id.) Mateo later filed a grievance, which was "processed and denied." (Id. ¶ 12.)
Finally, on August 10, 2008, Erns made Mateo wait "a long period" of time to enter his assigned cell and to use a toilet. (Id. ¶ 13.) Mateo was eventually forced to ask Erns for a "plastic bag and toilet tissue to defecate" because Erns would not allow him access to a toilet; he does not say whether or how Erns responded. (Id.) According to the complaint, defendant Alexander witnessed the situation and failed to stop it. (Id.) The same day Mateo filed a grievance against Erns and Alexander, and on August 11, 2008, he was transferred to a new cell block. (Id. ¶ 15.)
I. Converting Defendants' Motion
On a motion to dismiss, the Court accepts the complaint's allegations as true and draws all reasonable inferences in the plaintiff's favor. In re DDAVP Direct Purchaser Antitrust Litigation, 585 F.3d 677, 692 (2d Cir. 2009). Where a motion is premised on the plaintiff's failure to exhaust his administrative remedies, the question is whether nonexhaustion is clear from the face of the complaint. See Jones v. Bock, 549 U.S. 199, 216 (2007) (exhaustion is an affirmative defense, so inmates need not specially plead or demonstrate it in their complaints). If nonexhaustion is clear, a motion to dismiss should be granted. Shaw v. City of New York, No. 08-3997, 2009 WL 1110789, at *3 (S.D.N.Y. Apr. 21, 2009) (quoting McCoy v. Goord, 255 F. Supp. 2d 233, 251 (S.D.N.Y. 2003)). If it is not, the court may convert the defendant's motion to one for summary judgment "limited to the narrow issue of exhaustion and the relatively straightforward questions about the plaintiff's efforts to exhaust, whether remedies were available, or whether exhaustion might be, in very limited circumstances, excused." McCoy, 255 F. Supp. 2d at 251; see Fed. R. Civ. P. 12(b).
If the court chooses to convert the motion, it must "afford all parties the opportunity to present supporting material." Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir. 2000) (internal quotation marks omitted). Still, the court need not give formal notice of its intention if "the parties were . . . apprised of the likelihood of conversion by less formal or direct means and, in fact, had a sufficient opportunity to present the materials relevant to a summary judgment motion." 5C Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1366 (3d ed. 2004); see In re G. & A. Books, Inc., 770 F.2d 288, 295 (2d Cir. 1985) ("The essential inquiry is whether the [non-movant] should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings.").
Here, the defendants claim that Mateo did not exhaust his remedies in time. Mateo does not exactly disagree, but he does say the defendants have manipulated the grievance process. In a wealth of caution, the Court will assume that nonexhaustion is not plain from the face of the complaint, and it will treat defendants' motion as one for summary judgment limited to the exhaustion issue. Formal notice to the parties is unnecessary here: defendants attached as exhibits to their motion the records they have of Mateo's grievances. They also notified Mateo that the Court might choose to treat the motion as one for ...