The opinion of the court was delivered by: Gary L. Sharpe District Court Judge
MEMORANDUM-DECISION AND ORDER
Pro se plaintiff Caprice Caprice, an inmate formerly in the custody of New York State Department of Correctional Services (DOCS), brings this action under 42 U.S.C. § 1983 alleging violations of his First, Fourth, Fifth, Ninth, and Fourteenth Amendment rights. (See Am. Compl., Dkt. No. 8.) On September 8, 2010, defendants moved to dismiss Caprice's complaint. (Dkt. No. 19.) In a Report-Recommendation and Order (R&R) filed April 13, 2011, Magistrate Judge David R. Homer recommended that defendants' motion be granted.*fn1 (Dkt. No. 25.) Pending are Caprice's objections to the R&R. (Dkt. No. 26.) For the reasons that follow, the R&R is adopted in its entirety.
Before entering final judgment, this court routinely reviews all report and recommendation orders in cases it has referred to a magistrate judge.
If a party has objected to specific elements of the magistrate judge's findings and recommendations, this court reviews those findings and recommendations de novo. See Almonte v. N.Y. State Div. of Parole,No. 04-cv-484, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). In those cases where no party has filed an objection, or only a vague or general objection has been filed, this court reviews the findings and recommendations of a magistrate judge for clear error. See id.
A. Service of Defendants' Motion
Caprice objects to the R&R based on his alleged inability to respond to defendants' motion allegedly because he did not receive service of the motion. (See Objections at 1, Dkt. No 26.) While this issue is not addressed in the R&R, given Caprice's objection, the court will nonetheless review the issue de novo. Upon review of the record, Caprice's assertion is belied by the information available in both the docket and defendants' response to Caprice's objections. (See generally Resp. Mem. of Law, Dkt. No. 27; see also Decl. of Service, Dkt. No. 19:5.) The docket further indicates that on December 20, 2010, the court received a return receipt demonstrating that an order of extension to respond to defendants' motion was received by Caprice on December 10, 2010. (See Dkt. No. 23.) Accordingly, the court rejects Caprice's objection and finds service of defendants' motion to be timely and proper.
In the R&R, Judge Homer concluded that Caprice's claim should be dismissed for failure to exhaust administrative remedies. (See R&R at 6, Dkt. No. 25.) Under 42 U.S.C. § 1997e(a), an inmate must exhaust all administrative remedies prior to bringing a federal suit. See Porter v. Nussle, 534 U.S. 516, 524 (2002); see also Woodford v. Ngo, 548 U.S. 81, 83 (2006). The exhaustion requirement is further defined by several restrictions and caveats. See Giano v. Goord, 380 F.3d 670, 677 (2d Cir. 2004). First, the exhaustion requirement applies even when the administrative grievance process cannot provide the relief requested by the inmate.*fn3 See Nussle, 534 U.S. at 524. Second, the exhaustion requirement does not apply to former inmates who commence federal actions after their release from custody. See Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999). And third, the exhaustion requirement applies if a prisoner is released from prison during the action, yet failed to exhaust administrative remedies where there was "ample opportunity" to exhaust prior to release. See Berry v. Kerik, 366 F.3d 85, 88 (2d Cir. 2003). Dismissal is appropriate for failure to exhaust when a prisoner remained incarcerated for "several months after the onset of the conditions that gave rise to his complaints and prior to his release." Berry, 366 F.3d at 88. Additionally, a court must consider whether: (1) administrative remedies are 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 from raising the defense; or (3) special circumstances, such as a reasonable misunderstanding of the grievance procedures, justify the prisoner's failure to comply with the exhaustion requirement. Ruggiero v. Cnty. of Orange, 467 F.3d 170, 175 (2d Cir. 2004) (citing Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004)).
Here, Caprice is no longer in DOCS custody. However, he filed both his initial and amended complaints while incarcerated. (See Dkt. Nos. 1, 8.) Furthermore, as Judge Homer notes, Caprice was in DOCS custody "for at least seven months after the refusal of defendants to provide him with his 'research magazines.'"*fn4 (R&R at 7, Dkt. No. 25.) There is nothing in the record to suggest that administrative remedies were unavailable to Caprice. (See id. at 8-9.) Nor does the record evidence anything to suggest that defendants waived the defense or that special circumstances existed to justify Caprice's failure to comply. Instead, Caprice submits that he felt exhaustion of administrative procedures was unnecessary, admitting "that he neither exhausted, nor felt the need to exhaust, his particular administrative remedies in the present case." (See id. at 8-9 (citing Am. Compl. at ¶¶ 16, 18, Dkt. No. 8).) Thus, Caprice, by his own admission, failed to exhaust his administrative remedies. Therefore, because Judge Homer properly concluded that defendants' motion for failure to exhaust should be granted, the court grants defendants' motion.
Liability under § 1983 may not arise merely because an individual holds a supervisory position of authority. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). While there are circumstances where supervisory personnel may be considered personally involved, those ...