The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff, Ramon Cosme ("Cosme"), an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), commenced this civil rights action pursuant to 42 U.S.C. § 1983, alleging violations of the Eighth Amendment. Plaintiff claims that on April 9, 2004, while he was confined at Southport Correctional Facility, he was subjected to excessive force when he was beaten by several DOCS employees and he was denied appropriate medical care afterwards.
On November 7, 2008, this Court issued a decision and order granting defendants' motion for summary judgment, denying plaintiff's motion for summary judgment, and dismissing plaintiff's complaint. Plaintiff appealed, and on April 26, 2010, the Court of Appeals for the Second Circuit vacated this Court's judgment, and remanded the case to this Court for further proceedings to determine whether plaintiff's failure to exhaust his administrative remedies should be excused under the equitable rule established in Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004). See 374 Fed.Appx. 232, 233.
On June 17, 2010, this Court, finding the record to be incomplete regarding the facts bearing upon the exhaustion issue, directed the parties to file additional submissions concerning those facts. See Dkt. #39. Through their attorney, defendants responded on July 14, 2010. Dkt. #41. Plaintiff has now filed two affidavits (Dkt. #45, #46) addressing the exhaustion-related issues raised in the Court's June 17 order.
Plaintiff alleges that shortly after the alleged assault on April 9, while he was confined in the Special Housing Unit ("SHU") at Southport, he handed a five-page written grievance to a correction officer, to be sent to the Inmate Grievance Resolution Committee ("IGRC"). Plaintiff contends that the grievance was deliberately "lost" or destroyed after he gave it to the officer for mailing.
Plaintiff also alleges that he sent identical copies of the grievance to the DOCS Inspector General's Office, Prisoner's Legal Services of New York, and the Prison Rights Project of the Legal Aid Society. A copy of the grievance has been filed in this action, but it is not addressed to any particular party, other than the notations "C.C. file" and "C.C. Superintendent McGinnis" at the end. Dkt. #29 at 8.
In a letter dated May 5, 2004, and marked received on May 7, 2004, plaintiff wrote to the Superintendent of Southport "in regards of his grievance complaint that he submitted on 4-13-04, send copys to the following partie(s): P.L.S.; P.R.P.; and I.G's officer." Dkt. #24 at 24.*fn1 Those abbreviations apparently refer to the three entities referred to in the preceding paragraph. In that letter, plaintiff asked for an "officer to investigate 'as to why" if said grievance was submitted on 4-13-04, and we are now in May 4, 04 as to why, no one from the grievance committee ... has come to speak with my person or has given me notice that they have receive [sic] said complaint and/or are investigating my ... situation." Id.
In a response dated May 13, 2004, Inmate Grievance Program Supervisor J. Hale stated, "You ... state that you sent copies of your grievance to P.L.S., P.R.P., and the I.G.'s Office. However, you never submitted your complaint to this office." Id. at 28.
In a memo dated May 20, 2004, and stamped received on May 26, 2004, plaintiff replied to Hale, stating that plaintiff found it "ironic" that "on the same day [plaintiff] provided your office his complaint, while using the same mailing system" plaintiff sent copies of the grievance to three outside agencies, which "had no problem receiving a copy of said complaint." Dkt. #41 at 42. Plaintiff added, "You have failed to inform the undersigned if he needs to resubmit his complaint or by pass and go straight to Albany? Please inform." Id. There is no indication that plaintiff received a response.
In a memo dated May 12, 2004, and stamped received on May 20, 2004, plaintiff also wrote to Thomas Eagen, the Director of the Inmate Grievance Program in Albany, stating that he had "requested to know as to why his grievance as up to date [sic], has not been process [sic] or investigated," and that "said request has been to no avail." Dkt. #41 at 39. Plaintiff stated that he was "respectfully seeking [Eagen's] assistance to have his grievance complaint process and investigated." Id.
In a letter dated August 27, 2004, Eagen responded to plaintiff, although the text of Eagen's letter indicates that he was responding to correspondence from plaintiff dated July 28, 2004. See Dkt. #41 at 46. Eagen stated that DOCS records showed only one grievance filed by plaintiff while he was at Southport, which was unrelated to the April 9, 2004 incident. Eagen advised plaintiff to "contact the facility IGP Supervisor with your mitigating circumstances for not filing a grievance within the [appropriate] time frames ... ." Id.
In addition, defendants have filed a copy of a grievance by plaintiff dated July 28, 2004, and addressed to the Inmate Grievance Committee at Attica Correctional Facility, where plaintiff was then housed. The grievance repeats plaintiff's allegations about the April 9 assault, also alleges that plaintiff filed a grievance on April 13, 2004, but that the "grievance complaints were never acknowledged ...," and that "the inmate grievance supervisor at South-Port ... deliberately obstructed [plaintiff's] inmate grievance complaints filed in relation to the incident." Dkt. #41 at 44. Plaintiff requested that his "inmate grievance be located and correctly processed ...