The opinion of the court was delivered by: Denise Cote, District Judge
Plaintiff Marcus Bain ("plaintiff" or "Bain") filed this action under 42 U.S.C. § 1983 alleging that defendants used excessive force against him on January 5, 2008, while plaintiff was incarcerated at Sing Sing Correctional Facility ("Sing Sing") in the custody of the New York Department of Correctional Services ("DOCS"). Defendants move to dismiss the lawsuit pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(c) on the grounds that plaintiff failed to exhaust his remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). For the reasons stated below, defendants' 12(b)(6) and 12(c) motions are converted into a motion for summary judgment, and defendants' motion for summary judgment is granted.
The facts below, taken from the complaint and the parties' additional evidentiary submissions, are either undisputed or presented in the light most favorable to the plaintiff. On January 5, 2008, at approximately 7:00 pm, plaintiff was caught wearing too many clothes by prison officials and directed to stand in a holding area known as the "red box." Plaintiff asserts that corrections officers then hit him with their fists and a baton and kicked him after he fell to the ground. Plaintiff suffered a laceration to his forehead that required sutures and bruising to his face, eyes, arms, back, and shoulders. Defendants admit that the altercation occurred and that the plaintiff sustained injuries.
After the incident, Bain was escorted to Sing Sing's infirmary and then transported to Mount Vernon Hospital for additional medical treatment. After being treated overnight in the hospital, plaintiff returned to Sing Sing on January 6 and was held in the infirmary.
On January 7, while still in the infirmary, plaintiff wrote a "grievance letter" to the Inmate Grievance Review Committee ("IGRC") complaining about the force used against him during the January 5 incident. Plaintiff submitted this letter to the corrections officer assigned to the infirmary. Plaintiff followed up about the grievance with Captain Brereton on January 7 and 8 during his daily rounds. On January 9, plaintiff was discharged from the infirmary and transferred to the special housing unit ("SHU").
Before leaving the infirmary, plaintiff was charged with four infractions: "Violent Conduct," "(Attempted) Assault on Staff," "Refusing a Direct Order," and "Obscene Language." Plaintiff maintains that these charges were false and filed in order to conceal the officers' excessive use of force. In order to assist him in responding to these charges, plaintiff was given various documents, including a "use of force" report by Sgt. D. Mahunik, statements from corrections officers involved in the incident, and photographs taken of Bain while he was in the infirmary. On January 17, a disciplinary hearing, known as the "Superintendent's Hearing," was held. The plaintiff testified that excessive force had been used to subdue him during the incident and that the disciplinary charges were fabricated, but did not mention his January 7 grievance letter to the IGRC.
On January 29, the Hearing Officer issued a four-page hearing disposition. The disposition included a detailed statement of the evidence, a decision regarding the plaintiff's guilt on each charge, and a short statement of reasons for the disposition. The Hearing Officer concluded that Bain had "engaged in behavior that posed a serious threat to the safety, security and order of th[e] facility" and found him guilty of "Violent Conduct" and "Refusing a Direct Order," but not guilty of the other charges. Plaintiff was sentenced to 25 days (or time served) of SHU confinement; 2 months of "keep-lock" confinement without recreation; and 90 days' loss of telephone, package, and commissary use.
On January 30, plaintiff appealed to the DOCS Commissioner. On his appeal form, plaintiff asserted five grounds for review. The plaintiff complained that his hearing was not timely; that the Hearing Officer misrepresented on the record whether the hearing had previously been adjourned; that the plaintiff did not have enough time to prepare his defense; that his assistant's pre-hearing help was inadequate; and that the Hearing Officer acted inappropriately by investigating the acts involved in the misbehavior report. The plaintiff did not mention his January 7 grievance on the appeal form, however, nor did he note the failure of the Superintendent to respond to that grievance. On March 17, 2008, the Director of Special Housing/ Inmate Disciplinary Program affirmed the Hearing Officer's findings. By that time, plaintiff had been transferred to Clinton Correctional Facility in Dannemora, New York.
On March 12, 2009, plaintiff filed this complaint under 42 U.S.C. § 1983, alleging that defendants' use of excessive force, and subsequent filing of disciplinary charges against him, violated the Eighth and Fourteenth Amendments. Plaintiff also asserts pendent state law claims of assault, battery, and negligence. Plaintiff's complaint states, as support for his exhaustion of remedies, that "Plaintiff filed a grievance at Sing Sing Correctional Facility without receiving a decision."
On November 6, defendants filed a joint motion to dismiss and motion for judgment on the pleadings on the grounds that plaintiff failed to exhaust his remedies. The motion became fully submitted by defendants' letter reply of December 23.
I. Conversion to Motion for Summary Judgment
Federal Rule of Civil Procedure 12(d) provides that "[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." In light of the parties' submissions, which include affidavits, administrative records, and other evidentiary material, it is appropriate to convert defendants' motion to one seeking summary judgment. See Global Network Commc'ns, Inc. v. City of N.Y., 458 F.3d 150, 155 (2d Cir. 2006). A district court must ordinarily give notice to the parties before converting a motion to dismiss into a motion for summary judgment, see Hernandez v. Coffey, 582 F.3d 303, 307 (2d Cir. 2009), but a party "is deemed to have notice that a motion may be converted . . . if that party should reasonably have recognized the possibility that such a conversion would occur." Sira v. Morton, 380 F.3d 57, 68 (2d Cir. 2004) (citation omitted). Where a represented party attaches to a motion to dismiss or to his opposition thereto "extensive materials that were not ...