The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff, Shakim Brunson, appearing pro se, commenced this action under 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), alleges that defendant Arnie Jonathan, who at all relevant times was a DOCS sergeant, violated his constitutional rights in January and March 2004, while plaintiff was confined at Orleans Correctional Facility ("Orleans"). The January 2004 claim generally involves plaintiff's not being provided with a mattress to sleep on, and the March 2004 claim concerns a pat frisk by a female correction officer, to which plaintiff objected on religious grounds.
Defendant has moved for summary judgment on the ground that plaintiff has failed to exhaust his administrative remedies as required by the Prisoner Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). Plaintiff responded by filing a motion to compel discovery.
On January 6, 2010, the Court issued a Decision and Order denying plaintiff's motion to compel as untimely, and directing him to file a supplemental response to defendant's motion for summary judgment. 677 F.Supp.2d 640. The Court indicated that plaintiff could seek to oppose defendant's motion either on the ground that plaintiff needed further discovery, or on the merits, and the Court advised plaintiff of what was required of him procedurally in order to do so. Id. at 642-43.
Plaintiff did then file a response to defendant's motion, together with a cross-motion for summary judgment in his favor. Dkt. #43. Having reviewed plaintiff's response and cross-motion, as well as the complaint and defendant's motion papers, the Court grants defendant's motion for summary judgment, denies plaintiff's cross-motion, and dismisses the complaint.
I. Exhaustion under the PLRA
As stated, the basis for defendant's motion is plaintiff's alleged failure to exhaust his administrative remedies. The PLRA provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." Id.
To satisfy that requirement, prisoners in New York must follow the three-step DOCS grievance process. The first step in that process is the filing of a grievance with the Inmate Grievance Resolution Committee ("IGRC"). Next, the inmate may appeal an adverse decision to the prison superintendent. Finally, the inmate may appeal the superintendent's decision to the Central Office Review Committee ("CORC"). Brownell v. Krom, 446 F.3d 305, 309 (2d Cir. 2006).
In general, it is only upon completion of all three of these levels of review that a prisoner may seek relief in federal court under § 1983. Neal v. Goord, 267 F.3d 116, 121 (2d Cir. 2001), overruled on other grounds by Porter v. Nussle, 534 U.S. 516 (2002); Campos v. Correction Officer Smith, 418 F.Supp.2d 277, 278 (W.D.N.Y. 2006). The Second Circuit has explained that a prisoner's failure to exhaust may be excused, however, where: (1) administrative remedies were not in fact available; (2) prison officials have forfeited, or are estopped from raising, the affirmative defense of non-exhaustion; or (3) "special circumstances... justify the prisoner's failure to comply with administrative procedural requirements." Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004) (internal quotation marks omitted). As the Second Circuit has explained,
[d]efendants may... be estopped from raising non-exhaustion as an affirmative defense when prison officials inhibit an inmate's ability to utilize grievance procedures. Additionally, exhaustion may be achieved in situations where prison officials fail to timely advance the inmate's grievance or otherwise prevent him from seeking his administrative remedies, where claims are fully exhausted through other administrative procedures which were pursued for good reasons, or where defendants have forfeited the affirmative defense of non-exhaustion by failing to raise or preserve it.