The opinion of the court was delivered by: Gary L. Sharpe Chief Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff pro se Jose Torres commenced this action against Lieutenant Charles Gardner and multiple John/Jane Doe defendants ("Doe defendants") under 42 U.S.C. § 1983, alleging violations of his Eighth Amendment rights under theories of excessive force and denial of medical treatment. (See Am. Compl., Dkt. No. 18.) Pending is Lieutenant Gardner's motion to dismiss. (Dkt. No. 9.) For the reasons that follow, the motion is granted.
The standard of review under Fed. R. Civ. P. 12(b)(6) is well established and will not be repeated here.*fn1 For a full discussion of the standard, the court refers the parties to its previous opinion in Ellis v. Cohen & Slamowitz, LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010).
A. Failure to Exhaust Administrative Remedies
Lieutenant Gardner seeks dismissal of Torres' Amended Complaint for failure to comply with the Prison Litigation Reform Act (PLRA) and failure to state a claim upon which relief may be granted. (See Dkt. No. 9.) Because Torres' failure to exhaust his administrative remedies requires dismissal, the merits of his pleadings need not be addressed.
Under the PLRA, a prisoner may not bring a section 1983 claim relating to prison conditions "until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). This exhaustion requirement "applies 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). Exhaustion must occur before the plaintiff's lawsuit is filed. Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001) ("Subsequent exhaustion after suit is filed therefore is insufficient."), abrogated in part on other grounds by Porter, 534 U.S. 516.
The Second Circuit has articulated three scenarios in which a prisoner's failure to exhaust his administrative remedies may not require dismissal: where (1) administrative remedies were not in fact "available" to the prisoner; (2) defendants failed to raise or preserve the affirmative defense of non-exhaustion or their actions prevented the prisoner from exhausting his administrative remedies; or (3) the prisoner has plausibly alleged "special circumstances"-such as reasonable confusion as to a regulation-which resulted in his failure to comply with administrative requirements. Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004); Newman v. Duncan, No. 04-CV-395, 2007 WL 2847304, at *2-3 (N.D.N.Y. Sept. 26, 2007). Torres is not entitled to benefit from any of these exceptions.
First, Torres readily admits that New York's well-established three-step Inmate Grievance Program (IGP) was available to him, and that he availed himself of that program. (Am. Compl., Dkt. No. 18 at 3-4.); N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5 (2011). Torres' fatal error, however, is that he did not complete the IGP prior to bringing the present action. (Am. Compl., Dkt. No. 18 at 4.) Specifically, he admits that his appeal to the Central Office Review Committee (CORC)-the third and final IGP step-was not filed until May 13, 2011, nearly a month after the April 25, 2011 commencement of the instant suit. (Am. Compl., Dkt. No. 18 at 4; Compl., Dkt. No. 1.)
While Torres alleges that he was obstructed in his attempt to complete the IGP, his allegations do not implicate the second exception. Specifically, Torres claims that CORC impermissibly failed to render a decision on his final appeal. (Dkt. No. 23 at 2.) As noted above, however, Torres did not file his final appeal with CORC until nearly a month after he commenced this action. Torres makes no argument that his pursuit of administrative remedies was obstructed prior to his bringing the instant suit. Just as subsequent exhaustion after suit is filed cannot satisfy section 1997e(a), see Neal, 267 F.3d at 122, it follows that subsequent obstruction by a defendant cannot absolve a plaintiff's failure to exhaust administrative remedies that remained unhindered at the time of filing.
Finally, Torres alleges no "special circumstances" which resulted in his failure to comply with the IGP prior to commencing the present action. Because Torres failed to comply with the IGP before bringing this suit, and no exceptions to section 1997e(a) are available to him, dismissal as to Lieutenant Gardner is appropriate.
Torres argues that, in light of his efforts to comply with the IGP, dismissing his Amended Complaint against Lieutenant Gardner would be judicially inefficient. (Dkt. No. 23 at 2.) While this may be true in Torres' case, the Second Circuit has specifically rejected such an argument, noting that "allowing prisoner suits to proceed, so long as the inmate eventually fulfills the exhaustion requirement, undermines Congress' directive [in section 1997e(a)]." Neal, 267 F.3d at 123. Accordingly, Lieutenant Gardner's motion to dismiss is granted and Torres' claims against him are dismissed without prejudice. Although all of Torres' claims were filed on the same date, only those claims ...