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Verrilli v. Winchell

September 29, 2010

PASQUALE VERRILLI, PLAINTIFF,
v.
CORRECTION OFFICER BRIAN W. WINCHELL, SERGEANT TIMOTHY C. KINGSLEY, AND SEVERAL UNKNOWN CORRECTION OFFICERS, DEFENDANTS.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On July 22, 2009, Plaintiff, an inmate incarcerated at Great Meadow Correctional Facility ("Great Meadow"), brought this action, pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his civil rights under the Eighth Amendment to the United States Constitution. Currently pending before the Court is Defendants' motion for summary judgment.

II. BACKGROUND*fn1

On July 26, 2008, a fellow inmate assaulted Plaintiff while he was incarcerated at Great Meadow. As a result of the assault, Plaintiff suffered severe injuries.

Following the assault, Plaintiff was removed from the facility until July 31, 2008. Upon his return, Plaintiff was placed in isolation. On August 8, 2008, Plaintiff filed an appeal of the facility's disciplinary finding.

On August 18, 2008, Plaintiff was again removed from the facility for additional medical treatment and did not return to Great Meadow until August 31, 2008. On the day following Plaintiff's return to Great Meadow, he was placed into general population; and, on September 15, 2008, Plaintiff attempted to file a grievance. Great Meadow's Inmate Grievance Resolution Committee ("IGRC") rejected the grievance as untimely.

On November 11, 2009, Defendants filed the present motion for summary judgment. Defendants assert that the Court must dismiss Plaintiff's complaint because he failed to exhaust administrative remedies.

III. DISCUSSION

Under 42 U.S.C. § 1997e(a), an inmate must exhaust all administrative remedies prior to bringing any suits challenging the conditions of his confinement. See Porter v. Nussle, 534 U.S. 516, 524 (2002); see also Woodford v. Ngo, 548 U.S. 81, 84-85 (2006). This exhaustion requirement applies to all prison-condition claims, including federal civil rights cases. See Woodford, 548 U.S. at 85 (citation omitted); Porter, 534 U.S. at 524 (citations omitted).

Exhaustion for an inmate in New York State Department of Correction's ("DOCS") custody is generally achieved through the inmate grievance program ("IGP"). See N.Y. Comp. Codes. R. & Regs. tit. 7, § 701.1 et seq. (2001). The IGP establishes a twenty-one day limitations period for inmates to grieve an alleged incident, although they may file an application to toll the filing deadline. See id. at §§ 701.7(a)(1), 701.6(g). The IGP is composed of three tiers: (1) an inmate files a grievance, which the Inmate Grievance Resolution Committee ("IGRC") reviews; (2) the inmate takes an appeal from the IGRC's adverse decision to the superintendent of the facility; and (3) the inmate takes an appeal from the superintendent's adverse decision to the Central Office Review Committee ("CORC"). See Hemphill v. New York, 380 F.3d 680, 682 (2d Cir. 2004) (discussing the IGP process).

Although the Supreme Court has deemed exhaustion mandatory, the Second Circuit has recognized that "'certain caveats apply.'" Ruggiero v. County of Orange, 467 F.3d 170, 175 (2d Cir. 2006) (quoting Giano v. Goord, 380 F.3d 670, 677 (2d Cir. 2004)) (other citation omitted). When an inmate fails to follow the IGP, a court must conduct a three-part inquiry to determine if such failure is fatal to his claims. See id. A court must consider whether

(1) administrative remedies [we]re not available to the prisoner;

(2) defendants have either waived the defense of failure to exhaust or acted in such a way as to estop them ...


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