The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff Patrick J. Morrison ("Morrison") brings this action pursuant to 42 U.S.C. §1983, against Corrections Officers Hartman, Kingsley and Kozlowski ("defendants"). Morrison alleges that on October 20, 2007, while he was temporarily confined at Attica Correctional Facility, the defendants harassed, assaulted and subjected him to excessive force, in violation of his constitutional rights.
The defendants now move for summary judgment pursuant to Fed. R. Civ. Proc. 56, on the grounds that Morrison has failed to exhaust his administrative remedies. (Dkt. #44). For the reasons set forth below, the defendants' motion is denied.
Summary judgment will be granted if the record demonstrates 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). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986).
In order to defeat a summary judgment motion properly supported by evidence in admissible form, the non-movant must offer comparable materials demonstrating the existence of a genuine issue of material fact. See Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). The non-movant must present more than a "scintilla of evidence," Del. & Hudson Ry. Co. v. Cons. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990), and cannot rest solely on the allegations in his or her pleadings, or purely conclusory statements. See Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996).
II. Failure to Exhaust Administrative Remedies
The Prison Litigation Reform Act of 1995 ("PLRA") requires that prior to commencing litigation, a prisoner must exhaust all available administrative remedies. 42 U.S.C. §1997e(a). The PLRA's exhaustion requirement pertains 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). See also Presslar v. Tan, 2003 U.S. Dist. LEXIS 2688 at *8 (W.D.N.Y. 2003).
The administrative remedies applicable to inmates initially require the submission of a grievance within five days of the relevant occurrence, to an Inmate Grievance Coordinator ("IGC"). The inmate may appeal the IGC's determination to the facility superintendent, and then appeal the superintendent's decision to the Central Office Review Committee ("CORC"). See 7 NYCRR §701.1, §701.5. In the usual case, all levels of the grievance procedure must be exhausted before an inmate may commence litigation in federal court. See Macias v. Zenk, 495 F.3d 37, 43-44 (2d Cir. 2007); Porter, 534 U.S. 516 at 524; Boomer v. DePerio, 405 F. Supp. 2d 259, 262 (W.D.N.Y. 2005); Colon v. Harvey, 344 F. Supp. 2d 896, 897 (W.D.N.Y. 2004).
It is undisputed that Morrison did not file a grievance concerning the October 20, 2007 incident within five days of its occurrence. Morrison concedes his failure to file a timely grievance, but claims that he did not do so because the defendants threatened to kill him and his family if he complained about the alleged October 20, 2007 assault. Defendants deny ever having threatened Morrison.
Morrison was transferred to Fishkill Correctional Facility ("Fishkill") in November 2007. The parties agree that Morrison successfully filed a number of grievances at Fishkill relating to a variety of subjects, beginning in December 2007. It is also undisputed that in March 2008, Morrison attempted to file a grievance at Fishkill concerning the October 20, 2007 Attica incident, which was properly rejected as untimely.
In Hemphill v. New York, the Second Circuit prescribed a three-step inquiry to be utilized when an inmate "plausibly seeks to counter defendants' contention that the prisoner has failed to exhaust available administrative remedies as required by the PLRA." 380 F.3d 680, 686 (2d Cir. 2004).*fn1 First, the Court must determine whether administrative remedies were available to the inmate. Second, the Court must "inquire as to whether the defendants may have forfeited the affirmative defense of non-exhaustion by failing to raise or preserve it, or whether the defendants' own actions inhibiting the inmate's exhaustion of remedies may estop one or more of the defendants from raising the plaintiff's failure to exhaust as a defense." Finally, if the Court determines that administrative remedies were available and that there is no basis to estop defendants from raising the non-exhaustion defense, ...