The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
Rason Venable (" Plaintiff" ), an inmate in the custody of the New York State Department of Corrections and Community Supervision (" DOCCS" ), alleges, pursuant to 42 U.S.C. § 1983, that Corrections Officer K. Morabito used excessive force against him. Now before the Court is Defendant's motion for summary judgment (Docket No. [#35]). The application is granted.
On October 22, 2009, Morabito allegedly injured Plaintiff at Groveland Correctional Facility (" Groveland" ). At deposition, Plaintiff testified that shortly thereafter he filed an inmate grievance against Morabito. Pl. Dep. at 76. Plaintiff further indicated at deposition that he did not receive a response to the grievance. Id. at 77. Plaintiff testified that he then filed a second grievance, but again received no response. Id. Plaintiff states that he did not file an appeal since he never received a response to the grievances. Id. at 78 (" How can I appeal them w hen I never got a response to none of them?" ). On November 4, 2009, Plaintiff submitted a w ritten complaint to the New York State Attorney General's Public Integrity Bureau. On November 16, 2009, the Attorney General acknow ledged receiving the complaint. On November 3, 2010, Plaintiff commenced this action.
On May 23, 2012, Defendant filed the subject motion for summary
judgment, on the grounds that Plaintiff failed to exhaust his
administrative remedies before commencing this action as required by
42 U.S.C. § 1997e(a). In support of the application, Defendant submits
an affidavit from the Grievance Supervisor at Groveland, Bonnie
O'Brien (" O'Brien" ), w ho maintains that Plaintiff never filed a
grievance concerning the incident on October 22, 2009.*fn1
O'Brien further states that Plaintiff w as " on notice" of
the Inmate Grievance Program's procedures, from having been informed
about them during " inmate orientation w hich all inmates arriving at
Groveland Correctional Facility are required to attend." O'Brien Aff.
¶ ¶ 9-10.
Along w ith his motion, Defendant provided Plaintiff w ith the " Notice to Pro Se Litigants" required by Local Rule 56.2. Such notice informed Plaintiff that he w as required to oppose Defendant's motion by " filing his/her ow n sw orn affidavits or other papers as required by Rule 56(e)," and that " [a]n affidavit is a sw orn statement of fact that is based on personal know ledge[.]"
In opposition to Defendant's motion, Plaintiff filed an unsw orn response [#37], in w hich he maintains that he filed tw o grievances concerning Morabito's alleged assault. Plaintiff further accuses Defendant of attempting to distract the Court's attention aw ay from the merits of his claim, by raising the issue of exhaustion of administrative remedies.
42 U.S.C. § 1997e(a) 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." Generally, in order to satisfy 42 U.S.C. § 1997e(a), a plaintiff must file a grievance with respect to the challenged behavior, using DOCCS's Inmate Grievance Program procedures. However, the Second Circuit has identified circumstances in which an inmate's unsuccessful attempt to exhaust may still meet the exhaustion requirements of § 1997e(a). See Hemphill v. N.Y., 380 F.3d 680 (2d Cir.2004), Giano v. Goord, 380 F.3d 670 (2d Cir.2004), Johnson v. Testman, 380 F.3d 691 (2d Cir.2004). In that regard, [w]hile the Second Circuit has recognized that the PLRA's exhaustion requirement is mandatory, it has also recognized three exceptions to the exhaustion requirement: "when (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 reasonable misunderstanding of the grievance procedures, justify the prisoner's failure to comply with the exhaustion requirement."
Chisholm v. New York City Dept. of Correction, No. 08 Civ. 8795(SAS), 2009 WL 2033085 at *2 (S.D.N.Y. Jul. 13, 2009) (quoting Ruggiero v. County of Orange, 467 F.3d 170, 175 (2d Cir. 2006)).
In the instant case, Plaintiff insists, in his sw orn deposition testimony, that he filed tw o grievances concerning the alleged assault by Morabito. Since Plaintiff is the non-moving party, the Court accepts that statement as true, and proceeds as if Plaintiff in fact filed those grievances, even though O'Brien maintains that there is no record of them being filed.
Unfortunately for Plaintiff, though, it is not enough to simply file a grievance. Instead, before suing under Section 1983, a prisoner must completely exhaust the administrative remedies that are available. Plaintiff admits that he did not do so.
At deposition, Plaintiff indicated that he did not file an appeal because he never received a response to his grievances. Specifically, Plaintiff stated: " How can I appeal them w hen I never got a response to none of them?" Pl. Dep. at 78. The Court interprets this statement to mean that Plaintiff w as not aw are that he could file an appeal w hen he had not received a response to his grievance.
How ever, it is clear that DOCCS' Inmate Grievance Program procedures permit inmates to appeal to the next level even w hen they do not receive a response to a grievance. See, e.g., 7 N.Y.C.R.R. § 701.8(g) (" If the superintendent fails to respond w ithin the required 25 calendar day time limit the grievant may appeal his/her grievance to CORC. This is done by filing a notice of decision to appeal (form #2133) w ith the inmate grievance clerk." ). Because of that, an inmate is not excused from complying w ith 42 U.S.C. § 1997e(a) simply because he did not receive a response to his grievance. See, Harrison v. Goord, No. 07 Civ. 1806 (HB), 2009 WL 1605770 at * 8 (S.D.N.Y. Jun. 9, 2009) (" [E]ven assuming ...