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Dorsey v. Ingerson

United States District Court, N.D. New York

October 9, 2014

LEROY DORSEY, Plaintiff,
v.
FRANK INGERSON, et al., Defendants.

Leroy Dorsey, Plaintiff Pro se Elmira, New York.

JUSTIN L. ENGEL, ESQ., Assistant Attorney General, HON. ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, Albany, New York. Attorney for Defendant.

REPORT-RECOMMENDATION AND ORDER[1]

CHRISTIAN F. HUMMEL, Magistrate Judge.

Plaintiff pro se Leroy Dorsey, an inmate who was, at all relevant times, in the custody of the New York Department of Corrections and Community Supervision ("DOCCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants Correction Sergeant Christopher Collins and Corrections Officers Steven Groom and Frank Ingerson (collectively, "defendants, " where appropriate) violated his constitutional rights under the Eighth Amendment. After this court dismissed Dorsey's initial complaint (Dkt. No. 39) - dismissing some claims with prejudice and others with leave to replead - Dorsey filed an amended complaint. First Am. Compl. (Dkt. No. 67). After review of the amended complaint, several defendants were terminated and claims dismissed, leaving only an excessive force claim against defendants Groom, Collins, and Frank "Doe". Dkt. No. 69, at 8-13. Dorsey was granted permission to submit a second amended complaint identifying Frank "Doe" as defendant Ingerson. Dkt. No. 88. Several of the claims asserted in Dorsey's second amended complaint were dismissed as the complaint raised claims and named defendants that were previously dismissed without leave to replead. Dkt. No. 69; Dkt. No. 100. Thus, the court accepted Dorsey's second amended complaint

for filing only to the limited extent that (1) Frank Ingerson is substituted in place of Frank "Doe, " and (2) plaintiff alleges that defendants Groom, Collins, and Ingerson subjected him to excessive force in October 2010. All other claims and defendants are dismissed from the second amended complain without leave to replead.

Dkt. No. 100, at 4.

Presently pending is defendants' motion for summary judgment. Dkt. No. 120-2. Dorsey opposed the motion. Dkt. No. 125. It is recommended that defendants' motion for summary judgment be granted for the reasons that follow.

I. Background

The facts are reviewed in the light most favorable to Dorsey as the non-moving party. See subsection II (A) infra. At all relevant times, Dorsey was an inmate incarcerated at Great Meadow Correctional Facility ("Great Meadow").

On October 2, 2010, Collins was supervising the installation of a cell shield on Dorsey's Special Housing Unit ("SHU") cell or was otherwise outside of Dorsey's cell. Dkt. No. 120-4, at 3; Dkt. No. 125-2, at 3. Dorsey occupied this cell and was present in the cell during the installation. Dkt. No. 120-4, at 3. Collins and two additional DOCCS staff members, nonparties Officers S. Dimick and J. McCullen and Office of Mental Health ("OMH") registered nurse P. Pink, were present during the installation. Id. Dorsey apparently tied one end of a bed sheet around his neck and held the other end of the sheet up with his hands. Dkt. No. 125-2, at 3. Defendants thereafter entered Dorsey's cell and knocked him onto his bed, punching him in the face, head, and body. Second Am. Compl. (Dkt. No. 91, at 5). One defendant bent and twisted Dorsey's ankles for approximately ten minutes. Id. Defendants then cuffed Dorsey's hands behind his back, dragged him from his cell, slammed him onto a "hard stretcher, " and continued to punch him in the head, face, and body for ten more minutes. Id. Defendants placed a spit net over Dorsey's face. Id. Defendants then carried Dorsey out of the F-1 company and, in doing so, dropped the stretcher to the ground. Id. They continued to punch Dorsey during transport to the hospital facility. Id. at 6. As a result, Dorsey states that he suffered swelling of his head, brain, eye, face, wrists, legs, ankles, and body; bleeding from his mouth, wrists, face, and eye; and a cracked front tooth. Id. at 6.

Dorsey filed two grievances as a result of this incident. Dkt. No. 120-11, at 1-3; Dkt. No. 120-12, at 3. These grievances were denied. Dkt. No. 120-11, at 3; Dk. No. 120-12, at 3. Dorsey alleges to have appealed. Second Am. Compl., at 2; see also Dkt. No. 125-1 ¶ 43.

II. Discussion[2]

Dorsey alleges that defendants used excessive force against him in violation of the Eighth Amendment. Defendants argue that Dorsey's second amended complaint should be dismissed because Dorsey failed to exhaust his administrative remedies.[3]

A. Legal Standard

A motion for summary judgment may be granted if there is no genuine issue as to any material fact, it was supported by affidavits or other suitable evidence, and the moving party is entitled to judgment as a matter of law. The moving party has the burden of showing the absence of disputed material facts by providing the court with portions of pleadings, depositions, and affidavits which support the motion. FED. R. CIV. P. 56 (c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Facts are material if they may affect the outcome of the case as determined by substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All ambiguities are resolved and all reasonable inferences drawn in favor of the non-moving party. Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir. 1997).

The party opposing the motion must set forth facts showing that there is a genuine issue for trial, and must do more than show that there is some doubt or speculation as to the true nature of the facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). For a court to grant a motion for summary judgment, it must be apparent that no rational finder of fact could find in favor of the non-moving party. Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223-24 (2d Cir. 1994); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988).

Where, as here, a party seeks judgment against a pro se litigant, a court must afford the non-movant special solicitude. See Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006). As the Second Circuit has stated,

[t]here are many cases in which we have said that a pro se litigant is entitled to "special solicitude, "... that a pro se litigant's submissions must be construed "liberally, "... and that such submissions must be read to raise the strongest arguments that they "suggest, ".... At the same time, our cases have also indicated that we cannot read into pro se submissions claims that are not "consistent" with the pro se litigant's allegations, ... or arguments that the submissions themselves do not "suggest, "... that we should not "excuse frivolous or vexatious filings by pro se litigants, "... and that pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law....

Id. (citations and footnote omitted); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-92 (2d Cir. 2008).

B. Exhaustion

As a threshold matter, defendants contend that Dorsey has failed to exhaust his administrative remedies. Under 42 U.S.C. § 1997e(a), the Prison Litigation Reform Act, an inmate must exhaust all administrative remedies before bringing an action for claims relating to his incarceration, including federal civil rights cases. Porter v. Nussle, 534 U.S. 516, 524 (2002); see also Woodford v. Ngo, 548 U.S. 81, 82 (2006). To exhaust administrative remedies, the inmate must complete the full administrative review process set forth in the rules applicable to the correctional facility in which he is incarcerated. Jones v. Bock, 549 U.S. 199, 218 (2007) (internal citation omitted). The exhaustion requirement applies even if the administrative grievance process does not provide for all the relief requested by the inmate. Nussle, 534 U.S. at 524.

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) (citing Giano v. Goord, 380 F.3d 670, 677 (2d Cir. 2004)). Thus, a court must conduct a three-part inquiry to determine whether an inmate's failure to follow the applicable grievance procedures is fatal to his or her claims. 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, 467 F.3d at 175 (citing Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004)).

Administrative remedies are unavailable when there is no "possibility of [] relief for the action complained of." Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir. 2004) (citing Booth v. Churner, 532 U.S. 731, 738 (2001)). The test to determine the availability of an administrative remedy is an objective one: whether "a similarly situated individual of ordinary firmness" would have deemed it accessible. Id. at 688. Unavailability may be found in circumstances "where plaintiff is unaware of the grievance procedures or did not understand it... or where defendants' behavior prevents plaintiff from seeking administrative remedies." Hargrove v. Riley, No. CV-04-4587 (DST), 2007 WL 389003, at *8 (E.D.N.Y. 2007) (internal citations omitted). Further, "where a prisoner has made a reasonable attempt' to file a grievance, and prison officials have prevented the prisoner from filing that grievance, the grievance procedures are not available' to the defendant, and thus the [PLRA] does not preclude the prisoner from suing in federal court." Thomas v. New York State Dep't of Corr. Servs., 00-CV-7163(NRB), 2002 WL 31164546, at *3 (S.D.N.Y. Sept. 30, 2002)(citations omitted).

Here, there is no dispute that at all relevant times, DOCCS had in place a three-step inmate grievance program. N.Y. COMP. CODES. R. & REGS. tit. 7, § 701.5 (2014). First, the inmate is required to file a complaint with an inmate grievance program clerk ("IGP") within twenty-one days of the alleged action. Id. at § 701.5 (a) (1). An IGP representative has sixteen calendar days to informally resolve the issue. Id. at § 701.5 (b)(1). If no informal resolution occurs, the full IGP committee must hold a hearing within sixteen days of receipt of the grievance and must issue a written decision within two working days after conclusion of the hearing. Id. §§ 701.5 (b)(2)(i), (ii). If unfavorable, a grievant may appeal the IGP committee's determination to the facility superintendent within seven calendar days of receipt of the determination. Id. §701.5 (c) (1). If the superintendent's determination is unfavorable, the grievant may take the third step of the grievance procedure by appealing to the central office review committee ("CORC") within seven days after receipt of the unfavorable superintendent's determination. Id. §§ 701.5 (d)(i), (ii). CORC must issue a written decision within thirty days of receipt of the grievant's appeal. Id. § 701.5 (d)(2)(ii)

Here, Dorsey completed the first level of the grievance procedure - filing two grievances with the IGP committee - which were properly recorded, assigned grievance numbers, and decided. Dkt. No. 120-11, at 3; Dkt. No. 120-12, at 3. Although Dorsey states that he appealed the unfavorable grievance and that the result of this appeal was "C.O.R.C., more lies, cover ups, " (Second Am. Compl, at 2), he fails to offer proof of such appeal. Moreover, the DOCCS's computer printout, which "contains records of all appeals received from the facility Inmate Grievance Program Offices and which were heard and decided by CORC, on administrative appeal, since 1990" (Dkt. No. 120-10, at 3), establishes that Dorsey did not appeal his grievance to CORC, as required by New York Codes, Rules, and Regulations. Dkt. No. 120-13. Absent the existence of an excuse for this noncompliance, an inmate may not seek section 1983 relief in federal court. See e.g. Reyes v. Punzal, 206 F.Supp.2d 431, 432 (W.D.N.Y. 2002) (internal citation omitted).

In Dorsey's opposition to defendants' motion for summary judgment on the second amended complaint, he appears to contend that circumstances existed that rendered the administrative remedies unavailable to him - unnamed officers who collected mail stole his appeals of these grievances. Dkt. No. 125-1 ¶ ¶ 35-40, 43; 125-2, at 4; Dkt. No. 125-3 ¶ ¶ 8-9. Dorsey suggests that, in response to the legal mail tampering concerns, he filed grievance 50, 691-10. See Dkt. No. 125-1 ¶ 43 (explaining that Dorsey filed "MAILSTEALING" grievance). It appears that Dorsey's legal mail tampering grievance opined that 39 pieces of legal mail were stolen between October 26 and October 28 of 2010. On December 9, DOCCS denied the legal mail tampering grievance, contending that "Correspondence Unit Supervisory staff advise that 39 pieces of outgoing legal mail were processed for the grievant between October 26-28, 2010. Dkt. No. 125-4, at 6. All of the grievant's outgoing mail is being processed appropriately." Id. To the extent that Dorsey suggests that his excessive force grievance appeals were among the legal mail stolen during the October 26 to October 28 time period, the record demonstrates otherwise, as his initial excessive force grievances were filed on October 28 and were received and responded to on December 14. Dkt. No. 120-12, at 3. Thus, the record demonstrates that Dorsey's mail was being properly processed during this time. Id.

Although Dorsey asserts that he can "easily prove" that unknown officers stole his excessive force grievance appeals, he wholly fails to demonstrate how this would be proven. Dkt. No. 125-3 ¶ 8. At the motion for summary judgment stage, an unsupported, conclusory claim such as this is insufficient to demonstrate genuine issues of material fact, especially when coupled with the fact that Dorsey continued to file several grievances and appeals within the same time frame. Dkt. No. 120-13, at 5-6 (listing the five grievances that Dorsey successfully exhausted at Great Meadow in November 2010 and the additional grievance successfully exhausted at Great Meadow in December 2010). Indeed, Dorsey's actions at the time he claims to have attempted to file appeals of the excessive force grievances disprove his suggestion that any DOCCS staff members, let alone defendants, were stealing his legal mail. First, DOCCS's denial of Dorsey's excessive force grievances was dated December 14, 2010. Dkt. 120-12, at 3. Thus, had Dorsey appealed, it would have had to been filed on or after December 14, which is close in proximity to Dorsey's appeal of his mail tampering grievance on or about December 15 of that year. Dkt. No. 120-13, at 5; Dkt. No. 125-4, at 6. However, Dorsey fails to explain why the legal mail tampering grievance filed on or about December 15 was received by CORC without issue, while the alleged excessive force claim which was likely to have been filed at the same time, was stolen. Further, Dorsey filed several other grievances and appeals during the same period of time, as well as after the excessive force incident; thus, it does not appear that administrative remedies were unavailable to him. Dkt. No. 120-13 (listing six successfully exhausted grievances Dorsey filed at Great Meadow in November and December of 2010). See Harrison v. Goord, No. 07-CV-1806 (HB) 2009 WL 1605770, at *6 (S.D.N.Y. June 9, 2009) (finding a failure to exhaust where the plaintiff contended that DOCCS's staff tampered with his legal mail, yet the plaintiff continued to file several grievances during the same time period during which he contended that his legal mail was tampered with).

Insofar as Dorsey's complaint may suggest that he was in fear of filing grievances (Dkt. No. 125-1 ¶ 42), such claims are countered by the fact that Dorsey filed several grievance at the same time he alleges to have filed his excessive force grievance and continued to participate in the grievance process following his subsequent transfer to Elmira Correctional Facility. Dkt. No. 120-13, at 3-4; see also Harrison, 2009 WL 1605770, at *6 (citations omitted) (holding that alleged threats to an inmate were insufficient to render administrative remedies unavailable where inmate continued to file grievances immediately after threats were made).

Furthermore, there is no evidence that special circumstance existed to justify Dorsey's failure to appeal the grievance. As discussed, the record demonstrates that Dorsey was very familiar with the required grievance procedure, as he had filed 170 grievances through to the appeal stage during his incarceration. Dkt. No. 120-13. Finally, defendants did not waive their exhaustion defense. Defendants raised the defense in their answers to the amended and second amended complaints and motion for summary judgment on the second amended complaint. Dkt. No. 85; Dkt. No. 102; Dkt. No. 120-2, at 10.

In sum, because Dorsey's fails to plausibly present questions of fact regarding his failure to appeal his grievance determination to CORC, he has failed to exhaust his administrative remedies, which is fatal to his section 1983 claim. See Boddie v. Bradley, 228 Fed.Appx. 5, 1 (2d Cir. 2006).

Accordingly, it is recommended that defendants' motion for summary judgment be granted on this ground.

III. Conclusion

For the reasons stated above, it is hereby RECOMMENDED defendants' motion for summary judgment (Docket No. 120-2) on Dorsey's second amended complaint (Dkt. No. 91) be GRANTED and that judgment be granted to all defendants as to all claims.

Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Small v. Sec'y of HHS, 892 F.2d 15 (2d Cir. 1989); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).

Wayne Hargrove, Ossining, NY, pro se.

Alexander V. Sansone, Troy & Troy, Lake Ronkonkoma, NY, Joseph Carney, Mineola, NY, for Defendants.

MEMORANDUM AND ORDER

TRAGER, J.

*1 Inmate Wayne Hargrove ("Hargrove" or "plaintiff) brings this pro se action pursuant to 42 U.S.C. § 1983 against the Nassau County Sheriff, Nassau County Correctional Facility ("NCCF") and NCCF's medical staff, (collectively, "defendants"), seeking damages for injuries allegedly caused by defendants while he was incarcerated at NCCF. Defendants now move for summary judgment pursuant to Fed.R.Civ.P. 56 arguing, inter alia, that Hargrove's claims should be dismissed because he failed to exhaust administrative remedies, as required by the Prison Litigation Reform Act of 1995 ("PLRA"), 42 U.S.C. § 1997e. For the following reasons, defendants' motions for summary judgment are granted.

Background

On August 27, 2004, [1] Hargrove filed a complaint, alleging that defendants violated his civil rights when they forcibly administered purified protein derivative skin tests ("PPD test") to test for latent tuberculosis ("TB") in April 2002, 2003 and 2004 while he was incarcerated at NCCF. Complaint, Ex. C; Aff. in Opp. at 1-4, Ex. A. Hargrove named Nassau County Sheriff Edward Reilly ("Reilly"), NCCF and Nassau County University Medical Staff[2] as defendants.[3] On November 22, 2004, after discovery, County Defendants and NHCC Defendants filed separate motions for summary judgment pursuant to Fed.R.Civ.P. 56. Both defendants properly filed a Local Rule 56.1 Statement and served Hargrove a Notice to Pro Se Litigant Opposing Motion for Summary Judgment, pursuant to Local Civil Rule 56.2.

(1)

Tuberculosis Testing at NCCF

Upon entering NCCF, new prisoners must first go through medical intake. Aff. of Kim Edwards, ("Edwards Aff.") ¶ 3. This standard process usually takes seventy-two hours. Edwards Aff. ¶ 4. During medical intake, NCCF tests inmates for TB. Aff. of Getachew Feleke ("Feleke Aff.") ¶ 3. NCCF generally uses a PPD test to detect latent TB. Feleke Aff. ¶ 3. However, if an inmate has previously tested positive for TB, it is NCCF's policy to test for TB using an x-ray instead.[4] Feleke Aff. ¶ 3. As part of its Infectious Disease Program, NCCF re-tests inmates for TB each year, beginning after they have been housed in that facility for one year. Edwards Aff. ¶ 5.

(2)

Hargrove's Tuberculosis Testing at NCCF

On March 15, 2002, Hargrove was incarcerated at NCCF. NHCC Defs.' 56.1 Statement ¶ 1. Before entering the general population, Hargrove was processed through medical intake. NHCC Defs.' 56.1 Statement ¶ 2. The NCCF Medical Intake Chart for Hargrove, dated March 15, 2002 ("3/15/02 Chart"), shows that Hargrove informed medical staff that he had previously been exposed to tuberculosis. NHCC Defs.' Notice of Mot., Ex. C, at 1; NHCC Defs.' 56.1 Statement ¶ 2. The 3/15/02 Chart also shows that Hargrove reported testing positive to a prior PPD test and that he had been treated for TB in 2000. NHCC Defs.' Notice of Mot., Ex. C, at 1. Hargrove alleges that he was exposed to and treated for TB in 1997. Hargrove's Aff. in Opp. to Mot. for Summary Judgment, ("Aff. in Opp."), Ex. A at 1-2. Defendants contend that Hargrove was given an x-ray during the medical intake process because of his reported positive PPD test, and that the x-ray was negative, showing no active TB infection. NHCC Defs.' 56.1 Statement ¶ 2; Edwards Aff. ¶ 3. Without specifying a date, Hargrove generally states that his "request to be x-rayed was denied."Aff. in Opp. at 3.

*2 Pursuant to NCCF's Infectious Disease Program, after being incarcerated in NCCF for a year, Hargrove was scheduled to be re-tested for TB. Edwards Aff. ¶ 5; NHCC Defs.' 56.1 Statement ¶ 4. On May 24, 2003, Hargrove was given a PPD skin test. Edwards Aff. ¶ 5; NHCC Defs.' 56.1 Statement ¶ 4. This test was negative. Edwards Aff. ¶ 5; NHCC Defs.' 56.1 Statement ¶ 4. According to Hargrove, he requested an x-ray instead of a PPD test because of his previous exposure to TB, but was forced to submit to the PPD test. He also alleges that defendants threatened to put him in "keep lock" or "lock up" unless he submitted to the PPD test.[5] Complaint, Ex. C; Aff. in Opp. at 1-4, Ex. A.

The following year, in June of 2004, Hargrove was scheduled to be retested. Edwards Aff. ¶ 6; NHCC Defs.' 56.1 Statement ¶ 5. Because of the contradiction between the negative May 2003 PPD test and his reported positive history, NCCF contacted the Infectious Disease Department of the Nassau County Medical Center. Edwards Aff. ¶ 6. It was suggested that Hargrove be given a two-step PPD test, administered fifteen days apart. Feleke Aff. ¶ 4; Edwards Aff. ¶ 6. Hargrove was given these two PPD skin tests in June 2004. Edwards Aff. ¶ 6; NHCC Defs.' 56.1 Statement ¶ 5. Again, Hargrove alleges that these tests were administered against his will and under threat of being placed in quarantine. Complaint, Exs. A, B; Aff. in Opp., Ex. A.

On December 3, 2004, Hargrove was seen by a physician's assistant. NHCC Defs.' 56.1 Statement ¶ 6. During this meeting, Hargrove complained of a dry cough and that the site on his forearm where the June 2004 PPD tests had been administered was red and swollen. NHCC Defs.' 56.1 Statement ¶ 6; 11/28/04 Sick Call Request.

Hargrove's December 18, 2004 chart notes a positive PPD test and an order was placed in the chart that Hargrove not be submitted for future PPD tests. Edwards Aff. ¶ 7; NHCC Defs.' 56.1 Statement ¶ 8. See also 11/19/2004 Grievance.

Hargrove alleges that the following physical ailments were caused by the PPD tests: chronic coughing, high blood pressure, chronic back pain, lung infection, dizzy spells, blurred vision and a permanent scar on both his forearms. Complaint, Ex. C; Aff. in Opp. at 3-4.

(3)

NCCF's Inmate Grievance Procedure

NCCF has had an inmate grievance program ("IGP") in place since 2001. Aff. of Kenneth Williams, ("Williams Aff."), at 2. NCCF's IGP is carried out in conformance with the New York State Commission of Corrections Minimum Standards and Regulations for Management of County Jails and Penitentiaries ("Minimum Standards"). Id.

The IGP is designed to resolve complaints and grievances that an inmate may have regarding the inmate's care and treatment while incarcerated at NCCF. Williams Aff. at 2. Upon entering NCCF, all inmates receive a copy of the NCCF inmate handbook, which outlines the IGP. Id.

*3 The record does not include an actual copy of NCCF's IGP, but the NCCF's IGP is detailed in the affidavit of NCCF Investigator Kenneth Williams.[6] The IGP encourages inmates to resolve their grievances informally with the staff member assigned to the inmate housing unit first. Id. If an acceptable resolution cannot be reached, inmates must then proceed through the formal three-step process set out in the IGP. Id. at 3.

The first step requires an inmate to submit his grievance form[7] to the Inmate Grievance Unit by placing it in a locked box located in each housing area, "within five days of the date of the act or occurrence giving rise to the grievance."[8] Id. at 2-3.NCCF indexes all grievance forms filed by inmates in a log book and in a computer system. Id. at 1, 3. Once a grievance form is received by the Inmate Grievance Unit, the grievance is investigated and the inmate will receive a written determination of the outcome from the Inmate Grievance Coordinator in Section II of the grievance form.[9] Id. at 3. The inmate is then given a choice to accept or appeal the decision by checking the desired selection and signing his name in Section III of the grievance form. See, e.g., 11/19/2004 Grievance form. If the inmate is not satisfied with the decision of the Inmate Grievance Coordinator, the inmate may appeal the determination to the Chief Administrative Officer. Williams Aff. at 3. Finally, if the inmate is not satisfied with the Chief Administrative Officer's determination, the inmate may appeal to the New York State Commission of Correction Citizen's Policy and Complaint Review Council ("Council"). Id. at 3. The Council will then render a final determination.Id. at 3.

(4)

Authenticity of the Grievance Forms and Other Documents Submitted by Hargrove

In support of his allegations that he continuously informed defendants that he had been exposed to TB and, therefore, should not have been given PPD tests, Hargrove submitted three letters with his complaint, two of which were addressed to the Inmate Grievance Committee and one of which was addressed to "To whom this may concern." Complaint, Exs. A-C. He also submitted five complaint letters written to Sheriff Reilly, seventeen sick call requests and nine grievance forms during discovery and with his Affidavit in Opposition to Defendants' Motion for Summary Judgment, explaining that some of the medical records and notarized letters were "missing." Aff. in Opp, Ex. A at 2. Defendants call the authenticity of most of these documents into question, contending that Hargrove never submitted any grievance form or complaint letter before he filed his complaint. County Defs.' Mem. of Law at 16-21; County Defs.' 56.1 Statement at ¶¶ B2, C3, D3.

Kenneth Williams, an investigator at NCCF in the Inmate Grievance Unit, testified that he reviewed all of the grievance forms, complaint letters and sick call requests annexed to Hargrove's Complaint and to Hargrove's Affidavit in Opposition to Defendants' Motion for Summary Judgment. Williams Aff. at 2. Williams testified that he examined the grievance records at NCCF and searched "for any grievances by plaintiff/inmate Hargrove" and found "only two."[10] Williams Aff. at 1. The first grievance, dated November 19, 2004, complained that the medical staff continued "forcing [Hargrove] to take a T.B. shot while [he] keep[s] telling them that [he] has been exposed to T.B." 11/19/2004 Grievance; Williams Aff. at 1. In response to this grievance, Hargrove's "positive" TB status was noted in his medical records and an order was placed in Hargrove's medical chart, stating that Hargrove not be subjected to future PPD tests. 11/19/2004 Grievance, Section II; Williams Aff. at 1; NHCC Defs.' 56.1 Statement ¶ 8; Edwards Aff. ¶ 7. In Section III of the 11/19/2004 Grievance, Hargrove acknowledged that he had read the Grievance Coordinator's decision, and that he chose to accept the decision instead of appealing it. 11/19/2004 Grievance. The other grievance received by the Grievance Unit, dated May 11, 2005, complained of an unrelated matter. 5/11/2005 Grievance (complaining of back problems and requesting the return of his medical shoes); Williams Aff. at 1. Thus, Williams concluded that, beside the 11/19/2004 and 5/11/2005 Grievance Forms, none of the other documents were "received by the grievance unit, and, given the locked box system, the grievance-forms were never submitted by plaintiff/inmate."Williams Aff. at 2.

*4 A visual examination of the grievance forms Hargrove submitted in support of his claims suggests forgery. Five of the nine grievance forms were requests to stop PPD testing. See April 19, 2002 grievance; April 28, 2002 grievance; April 20, 2003 grievance; April 28, 2003 grievance; November 19, 2004 grievance. The remaining grievance forms concerned Hargrove's requests for medical shoes. See March 18, 2002 grievance; July 6, 2002 grievance; February 20, 2003 grievance; May 11, 2005 grievance. Of the grievance forms complaining of unwanted PPD tests, the April 28, 2002 grievance form is a patent photocopy of the April 19, 2002 grievance form, and the April 28, 2003 grievance form is a patent photocopy copy of the April 20, 2003 grievance form, with only the handwritten dates changed. The only potentially authentic grievance forms relating to Hargrove's complaint about the PPD testing are dated April 19, 2002, April 20, 2003, and November 19, 2004. Of these grievance forms, only the November 19, 2004 has been authenticated by NCCF personnel. See generally Williams Aff. at 1-4.

Turning to the complaint letters addressed to Reilly, many contain notary stamps cut from the bottom of unrelated documents and photocopied onto the bottom of the complaint letters. See County Defs.' Mem. of Law at 18-21. C.O. Thomas McDevitt and C.O. Paul Klein, both of whom perform notary services for prisoners at NCCF, have submitted sworn affidavits, stating that they kept individual Notary Log Books covering all dates relevant to this litigation. Aff. of C.O. Klein, ("Klein Aff."), at 1; Aff. of C.O. McDevitt, ("McDevitt Aff."), at 1. McDevitt's Notary Log Book shows that he notarized only one document for Hargrove. This document, dated May 13, 2002, was a motion related to Hargrove's criminal trial. McDevitt Aff. at 1-2. Hargrove signed the Notary Log Book acknowledging receipt of that notarized motion. McDevitt Aff. at 2. McDevitt states that he never notarized any other documents for Hargrove. McDevitt Aff. at 2. However, McDevitt's stamp and signature dated May 13, 2002 (the date of the legitimate notarization) appear on Hargrove's letter to Sheriff Reilly dated May 10, 2002. County Defs.' Not. of Motion, Ex. A.

These facts repeat themselves in regard to the documents bearing the notary stamp and signature of Klein. Klein had performed several legitimate notarizations for Hargrove in connection to Hargrove's criminal trial. Klein Aff. at 1-2. Hargrove signed Klein's Notary Log Book acknowledging receipt of those notarized documents. Klein Aff. at 2. However, Klein states that he never notarized any of Hargrove's letters addressed to Sheriff Reilly that bear Klein's stamp and signature. Klein Aff. at 2. On all of the documents that Hargrove submitted bearing Klein's stamp and signature, the dates and signatures of Klein match identically to the dates on which he had performed legitimate notarizations for Hargrove in connection with his criminal trial. Defendants argue it is clear that the documents bearing the stamps and signatures of McDevitt and Klein were not actually notarized by these notaries. County Defs.' Mem. of Law at 17-22.

*5 Hargrove does not deny these allegations. Instead, he resubmits the documents that McDevitt and Klein testify they did not notarize with his Affidavit in Opposition and insists that the documents "refute[ ] the assertions put forth by the defendants."Aff. in Opp. at 2.

Discussion

(1)

Summary Judgment Standard

A motion for summary judgment is granted when "there is no genuine issue as to any material fact and... the moving party is entitled to judgment as a matter of law."Fed.R.Civ.P. 56(c). A court ruling on a summary judgment motion must construe the facts in the light most favorable to the non-moving party and draw all reasonable inferences in his favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Williams v. Metropolitan Detention Center, 418 F.Supp.2d 96, 100 (E.D.N.Y.2005). Defendants, the moving party in this action, bear the burden of demonstrating the absence of a genuine issue of material fact. Baisch v. Gallina, 346 F.3d 366, 371 (2d Cir.2003).

As Hargrove is proceeding pro se, his complaint must be reviewed carefully and liberally, and be interpreted to "raise the strongest argument it suggests, " Green v. United States, 260 F.3d 78, 83 (2d Cir.2001), particularly when civil rights violations are alleged, see, e.g., McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir.2004). Plaintiff's complaint does not specify the legal theories upon which it relies, but, in construing his complaint to raise its strongest arguments, it will be interpreted to raise claims under 42 U.S.C. § 1983. See, e.g., Dufort v. Burgos, No. 04-CV-4940, 2005 WL 2660384, at *2 (E.D.N.Y. Oct. 18, 2005) (liberally construing plaintiff's complaint, which failed to specify the legal theory or theories upon which it rested, as, inter alia, a claim under 42 U.S.C. § 1983); Williams, 418 F.Supp.2d at 100 (same).

(2)

Prison Litigation Reform Act

a. Purpose of the Prison Litigation Reform Act

The PLRA was intended to "reduce the quantity and improve the quality of prisoner suits." Woodford v. Ngo, ___ U.S. ___, 126 S.Ct. 2378, 2387 (2006) (quoting Porter v. Nussle, 534 U.S. 516, 524 (2002)). It seeks to eliminate unwarranted interference with the administration of prisons by federal courts, and thus "affor[d] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.'" Woodford, 126 S.Ct. at 2387 (quoting Porter, 534 U.S. at 525).See also Booth v. Churner, 532 U.S. 731, 739 (2001). Formal grievance procedures allow prison officials to reconsider their policies, implement the necessary corrections and discipline prison officials who fail to follow existing policy. See Ruggiero v. County of Orange, 467 F.3d 170, 177-78 (2d Cir.2006).

b. The Exhaustion Requirement

The PLRA's "invigorated" exhaustion provision, 42 U.S.C. § 1997e(a), provides the mechanism to reduce the quantity and improve the quality of prisoners' suits by requiring that prison officials have the opportunity to address prisoner complaints through internal processes before allowing a case to proceed in federal court. Woodford, 126 S.Ct. at 2382 (citing Porter, 534 U.S. at 524). Section 1997e(a) provides that:

*6 [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, or other correctional facility until such administrative remedies as are available are exhausted.

42 U.S.C. § 1997e(a).

The exhaustion requirement is a mandatory condition precedent to any suit challenging prison conditions, including suits brought under Section 1983. Woodford, 126 S.Ct. at 2383; Ruggiero, 467 F.3d at 174; Williams, 418 F.Supp.2d at 100-01. The exhaustion provision is applicable to suits seeking relief, such as money damages, that may not be available in prison administrative proceedings, as long as other forms of relief are obtainable through administrative channels. Giano v. Goord, 380 F.3d 670, 675 (2d Cir.2004); see also Woodford, 126 S.Ct. at 2382-83 ("[A] prisoner must now exhaust administrative remedies even where the relief sought-monetary damages-cannot be granted by the administrative process.") (citing Booth, 532 U.S. at 734).

In June 2006, the Supreme Court held that the PLRA requires "proper exhaustion" before a case may proceed in federal court. Woodford, 126 S.Ct. at 2387. "Proper exhaustion" requires a prisoner to use "all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).'" Ruggiero, 467 F.3d at 176 (citing Woodford, 126 S.Ct. at 2385 (emphasis in original)). Although the level of detail necessary to properly exhaust a prison's grievance process will vary from system to system, Jones v. Bock, 127 S.Ct. 910, 2007 WL 135890, at *12 (Jan. 22, 2007), "proper exhaustion" under the PLRA "demands compliance with [that] agency's deadlines and other critical procedural rules.' " Ruggiero, 467 F.3d at 176 (quoting Woodford, 126 S.Ct. at 2386). Thus, the PLRA's exhaustion requirement is not satisfied by "untimely or otherwise procedurally defective attempts to secure administrative remedies." Ruggiero, 467 F.3d at 176 (citing Woodford, 126 S.Ct. at 2382).

(3)

Exhaustion Analysis: Hargrove did not Exhaust the Administrative Remedies Made Available by NCCF prior to Bringing Suit

Section 1997e(a) of the PLRA applies to Hargrove's complaint; Hargrove was and continues to be confined in a correctional facility, see Berry v. Kerik, 366 F.3d 85, 87 (2d Cir.2004), and Hargrove's claim is about a "prison condition" within the meaning of the PLRA, see Williams, 418 F.Supp.2d at 101. See also Sloane v. W. Mazzuca, No. 04-CV-8266, 2006 WL 3096031, at *4 (S.D.N.Y. Oct. 31, 2006) (recognizing PLRA's application to complaint alleging retaliation by prison officials for plaintiff's refusal to consent to a PPD test). Accordingly, the merits of Hargrove's Section 1983 claims can only be addressed if it is first determined that Hargrove properly exhausted each claim under Section 1997e(a) of the PLRA before filing his complaint in federal court.

*7 Hargrove has submitted both forged[11] and authentic grievance forms in opposing defendants' motions for summary judgment. Excluding, for the moment, the forged documents, NCCF's records reflect that Hargrove did not submit his first grievance until after he filed the instant complaint. Williams Aff. at 1. Hargrove's first grievance complaining of unwanted PPD testing is dated November 19, 2004, Williams Aff. at 1, two to three months after Hargrove filed his complaint. Additionally, this first grievance, dated November 19, 2004, was submitted five months after the last PPD test was administered to him in June 2004. NHCC Defs.' 56.1 Statement ¶¶ 5, 6. This five-month period far exceeds the five-day window provided by NCCF's IGP. Since Hargrove failed to comply with the IGP's deadlines, he did not properly exhaust the available administrative remedies. Ruggiero, 467 F.3d at 176 ("untimely or otherwise procedurally defective attempts to secure administrative remedies do not satisfy the PLRA's exhaustion requirement.'") (quoting Woodford, 126 S.Ct. at 2382).

Furthermore, even if the falsified grievance forms Hargrove submitted in support of his claim are considered authentic, they are still untimely. The diagnostic TB tests (whether xray or PPD tests) were given to Hargrove on March 15, 2002, May 24, 2003 and in June of 2004, but the grievance forms Hargrove submitted complaining of unwanted PPD tests are dated April 19, 2002, April 28, 2002, April 20, 2003, April 28, 2003 and November 19, 2004. None of these grievances were filed "within five days of the of the date of the act or occurrence giving rise to the grievance."Williams Aff. at 3. There is no evidence in the record suggesting that NCCF's IGP allows for a tolling of the five-day time limit in which to file a grievance.[12]

While the letters to Reilly and sick call requests show that Hargrove attempted to bring his complaints about the PPD testing to the attention of the prison staff, see, e.g., Aff. in Opp., Exs. A-D, NCCF's IGP requires use of formal grievance forms. Thus, writing complaint letters and submitting sick call requests did not properly exhaust NCCF's available administrative remedies. See, e.g., Hernandez v. Coffey, No. 99-CV-11615, 2006 WL 2109465, at *4 (S.D.N.Y. July 26, 2006) (holding letters did not satisfy plaintiff's exhaustion obligation); Williams, 418 F.Supp.2d at 101 (holding that because plaintiff's efforts to convey his medical condition through letters and conversations with the warden and medical staff did "not include the required steps of the PLRA's administrative remedy process, " plaintiff failed to exhaust); Mills v. Garvin, No. 99-CV-6032, 2001 U.S. Dist. LEXIS 3333, at *8 (S.D.N.Y. Mar. 2, 2001) ("letter writing is not the equivalent of an exhaustion of administrative remedies under the PLRA").

As Hargrove failed to properly exhaust his administrative remedies, this action is precluded by 42 U.S.C. § 1997e(a) unless Hargrove can establish excuse for his failure to exhaust.

(4)

No Grounds to Excuse Plaintiff's Failure to Exhaust

*8 Exhaustion is an affirmative defense that defendants have the duty to raise. Jones, 2007 WL 135890, at * 8-11; Sloane, 2006 WL 3096031, at *4; Williams, 418 F.Supp.2d at 101. Once argued by the defendants, a plaintiff has an opportunity to show why the exhaustion requirement should be excused or why his failure to exhaust is justified. See Ruggiero, 467 F.3d at 175; Collins v. Goord, 438 F.Supp.2d 399, 411 (S.D.N.Y.2006) ("[T]he Second Circuit has cautioned that 'while the PLRA's exhaustion requirement is mandatory, ' certain caveats apply.'")(internal citations omitted). Thus, before concluding that a prisoner failed to exhaust available administrative remedies as required by Section 1997e(a) of the PLRA, the following three factors must be considered: (1) whether administrative remedies were actually available to the prisoner; (2) whether defendants have either waived the defense of failure to exhaust or acted in such a way as to estop them from raising the defense; and (3) whether special circumstances, such as a reasonable misunderstanding of the grievance procedures, exist justifying the prisoner's failure to comply with the exhaustion requirement. Ruggiero, 467 F.3d at 175 (citing Hemphill v. New York, 380 F.3d 680, 686 (2d Cir.2004)).[13]

a. Whether administrative remedies were "available" to Hargrove

The first step in the Hemphill inquiry requires a court to determine whether administrative remedies were available to the prisoner. Hemphill, 380 F.3d at 686. The test for assessing availability is an "objective one: that is, would a similarly situated individual of ordinary firmness have deemed them available." Id. at 688 (internal quotation marks omitted). In making this determination, "courts should be careful to look at the applicable set of grievance procedures." Abney v. McGinnis, 380 F.3d 663, 668 (2d Cir.2004). Exhaustion may be considered unavailable in situations where plaintiff is unaware of the grievance procedures or did not understand it, Ruggiero, 467 F.3d at 179, or where defendants' behavior prevents plaintiff from seeking administrative remedies, [14] Hemphill v. State of New York, 380 F.3d 680, 686 (2d Cir.2004).

Here, Hargrove has not claimed that NCCF's administrative grievance procedure was unavailable to him. In fact, Hargrove demonstrated his access to and knowledge of NCCF's IGP by filing proper grievances on November 19, 2004 and on May 10, 2005. Hargrove did not dispute any part of Investigator Williams's affidavit detailing the IGP and its availability to inmates since 2001. Specifically, Hargrove did not dispute, upon entering the facility, that he received a copy of the inmate handbook outlining the IGP. He has not claimed that he is unfamiliar with or unaware of NCCF's IGP. Hargrove has not alleged that prison officials failed to advance his grievances[15] or that they threatened him or took any other action which effectively rendered the administrative process unavailable.

*9 Additionally, Hargrove's transfer from NCCF to Sing Sing Correctional Facility ("Sing Sing") in July 2005 did not excuse his previous failure to properly exhaust. See, e.g., Sims v. Blot, No. 00-CV-2524, 2003 WL 21738766, at *4 (S.D.N.Y. July 25, 2003) (determining that failure to exhaust administrative remedies is not excused by transfer to another facility); Santiago v. Meinsen, 89 F.Supp.2d 435, 440-41 (S.D.N.Y.2000) (determining that plaintiff should not be "rewarded" for failing to participate in grievance procedure before being transferred). Hargrove had ample opportunity to properly file his grievances and to appeal their results as required by NCCF's procedures while he was imprisoned at NCCF. The last PPD test Hargrove complains of was given in 2004; therefore, Hargrove had until June or July of 2004 to timely file his grievance in accordance with NCCF's IGP. Hargrove was not transferred to Sing Sing until July 2005. County Defs.' Mem. of Law at 2. Thus, Hargrove's transfer cannot excuse his previous failure to properly exhaust.

b. Estoppel

The second step of the inquiry asks whether defendants are estopped from raising exhaustion as a defense. Specifically, "whether the defendants may have forfeited the affirmative defense of non-exhaustion by failing to raise or preserve it, or whether the defendants' own actions inhibiting the inmate's exhaustion of remedies may estop one or more of the defendants from raising the plaintiff's failure to exhaust as a defense." Hemphill, 380 F.3d at 686 (internal citations omitted).

Here, Hargrove has not made any statements that would permit a finding that defendants should be estopped from raising the affirmative defense of exhaustion or that defendants waived the right to raise the defense. Defendants first raised the PLRA's exhaustion requirement as an affirmative defense in their respective answers. See County Defs.' Am. Answer at 3; NHCC Defs.' Answer at 1. County Defendants raised it again in their motion for summary judgment. See County Defs.' Mem of Law at 15-23. Thus, defendants are not estopped from raising the affirmative defense now. See, e.g., Sloane, 2006 WL 3096031, at *8 (exhaustion defense not waived where defendants first raised it in their motion to dismiss).

Additionally, defendants have not threatened Hargrove or engaged in other conduct preventing him from exhausting the available administrative remedies. Cf. Ziemba v. Wezner, 366 F.3d 161, 162 (2d Cir.2004) (holding defendants were estopped from asserting non-exhaustion because of prison officials' beatings, threats and other conduct inhibiting the inmate from filing proper grievances); Feliciano v. Goord, No. 97-CV-263, 1998 WL 436358, at *2 (S.D.N.Y. July 27, 1998) (holding defendants were estopped from asserting non-exhaustion where prison officials refused to provide inmate with grievance forms, assured him that the incidents would be investigated by staff as a prerequisite to filing a grievance, and provided prisoner with no information about results of investigation). Hargrove has not argued otherwise. See Ruggiero, 467 F.3d at 178 (holding defendants were not estopped from asserting a failure to exhaust defense where plaintiff pointed to no affirmative act by prison officials that would have prevented him from pursing administrative remedies); Sloane, 2006 WL 3096031, at *8 (finding no estoppel where plaintiff did not argue that defendants prevented him from pursuing the available administrative remedies); Hernandez, 2006 WL 2109465, at *4 (finding no estoppel where plaintiff did not argue that any threats or intimidation prevented him from pursuing his appeals). Thus, for the same reasons that administrative remedies were not deemed unavailable to Hargrove, defendants are not estopped from raising a failure to exhaust defense.

c. Special circumstances

*10 Even where administrative remedies are available and the defendants are not estopped from arguing exhaustion, the court must "consider whether special circumstances' have been plausibly alleged that justify the prisoner's failure to comply with administrative procedural requirements.'" Hemphill, 380 F.3d at 688 (quoting Giano, 380 F.3d at 676). For example, plaintiff's reasonable interpretation of regulations differing from prison official's interpretation has been held to constitute a "special circumstance." Giano, 380 F.3d at 676-77. No special circumstances have been alleged that would excuse Hargrove from availing himself of administrative remedies. See Sloane, 2006 WL 3096031, at *8 ; Freeman v. Goord, No. 02-CV-9033, 2004 U.S. Dist. LEXIS 23873, at * 9-10 (S.D.N.Y.2004) (granting motion to dismiss where "there is no evidence in the record... of any 'special circumstances' in this action.")

(5)

Hargrove's Failure to Exhaust, in Addition to his Fraud on the Court, Warrants Dismissal with Prejudice

Hargrove has not sufficiently rebutted the defendants' assertion of failure to exhaust, and a liberal reading of his submissions does not reveal any grounds to excuse that failure.

Because Hargrove filed a complaint in federal court before filing a grievance, permitting his unexhausted and unexcused claim to proceed would undercut one of the goals of the exhaustion doctrine by allowing NCCF to be haled into federal court without the "opportunity to correct its own mistakes with respect to the programs it administers." Woodford, 126 S.Ct. at 2385. See also Ruggiero, 467 F.3d at 178 (citing Porter, 534 U.S. at 525). Thus, his complaint must be dismissed.

In general, dismissal without prejudice is appropriate where plaintiff has failed to exhaust but the time permitted for pursuing administrative remedies has not expired. Berry v. Kerik, 366 F.3d 85, 87 (2d Cir.2004). Dismissal with prejudice is appropriate where "administrative remedies have become unavailable after the prisoner had ample opportunity to use them and no special circumstances justified failure to exhaust." Berry, 366 F.3d at 88. Here, Hargrove's administrative remedies were available to him during his entire period of confinement at NCCF. He remained incarcerated in NCCF throughout the time period in which he alleges the PPD tests were given. He could have exhausted remedies for his grievances at any time. Therefore, Hargrove had ample opportunity to seek administrative remedies but failed to do so. Because there is no evidence in the record that administrative remedies are still available to Hargrove, as the five-day time period had run, and because Hargrove has alleged no special circumstances justifying his failure to exhaust, his complaint is accordingly dismissed with prejudice. Berry, 366 F.3d at 88 (upholding dismissal with prejudice where plaintiff had no justification for his failure to pursue administrative remedies while they were available.)

*11 Additionally, defendants' have moved for sanctions based on Hargrove's alleged submission of falsified evidence. If a party commits a fraud on the court, the court has the inherent power to do whatever is reasonably necessary to deter abuse of the judicial process. Shangold v. The Walt Disney Co., No. 03-CV-9522, 2006 WL 71672, at *4 (S.D.N.Y. January 12, 2006) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991)). Fraud upon the court has been defined as "fraud which seriously affects the integrity of the normal process of adjudication." Gleason v. Jandrucko, 860 F.2d 556, 559 (2d Cir.1988); McMunn v. Mem'l Sloan-Kettering Cancer Center, 191 F.Supp.2d 440, 445 (S.D.N.Y.2002). In order for a court to grant sanctions based upon fraud, it must be established by clear and convincing evidence that a party has "sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by... unfairly hampering the presentation of the opposing party's claim or defense." McMunn, 191 F.Supp.2d at 455 (quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1119 (1st Cir.1989).

After carefully reviewing the allegedly fraudulent documents, it must be concluded that Hargrove consciously falsified these documents. See, e.g., Shangold, 2006 WL 71672, at *1, *3 (finding clear and convincing evidence of fraud where plaintiffs fabricated a timeline and plot outlines to advance their claims); McMunn, 191 F.Supp.2d at 446 (finding clear and convincing evidence of fraud where plaintiff edited audio tapes and represented that they were unedited during discovery). The notaries performing services for prisoners at NCCF testify that they never notarized many of the documents supplied by Hargrove. See Klein Aff.; McDevitt Aff. Furthermore, a visual examination of the documents themselves makes it clear that many of the documents submitted by Hargrove are forgeries.

In considering what sanction to impose, courts consider the following five factors: (i) whether the misconduct was the product of intentional bad faith; (ii) whether and to what extent the misconduct prejudiced the plaintiffs; (iii) whether there was a pattern of misbehavior rather than an isolated instance; (iv) whether and when the misconduct was corrected; and (v) whether further misconduct is likely to occur in the future. Scholastic, Inc. v. Stouffer, 221 F.Supp.2d 425, 444 (S.D.N.Y.2002) (citing McMunn, 191 F.Supp.2d at 461).

Here, Hargrove's deception was not an isolated instance; he fabricated the dates on many grievance forms, in addition to improperly duplicating notary stamps on complaint letters to make them look authentic. Klein Aff. at 2; McDevitt Aff. at 2; County Defs.' 56.1 Statement ¶¶ C3, D3. He submitted these forgeries to defendants during discovery and again as exhibits to his Affidavit in Opposition to Defendant's Motion for Summary Judgment. A severe sanction is warranted as Hargrove's forgeries were intentional, he never corrected them once their authenticity was challenged and he continues to insist on their veracity. Aff. in Opp. at 1-4. Given that there is clear and convincing evidence that Hargrove has continuously and consciously perpetrated a fraud on the court through his submission of fraudulent documents and sworn affirmations of those documents' authenticity, dismissal with prejudice is especially appropriate. See, e.g., Shangold, 2006 WL 71672, at *5 (dismissing with prejudice where plaintiffs fabricated evidence to advance their claims); Scholastic, 221 F.Supp.2d at 439-444 (dismissing with prejudice where plaintiff produced seven pieces of falsified evidence); McMunn, 191 F.Supp.2d at 445 (dismissing with prejudice where plaintiff "lie[d] to the court and his adversary intentionally, repeatedly, and about issues that are central to the truth-finding process").

Conclusion

*12 Because Hargrove did not satisfy the exhaustion requirement under the PLRA, defendants' motions for summary judgment are granted. Further, considering the fraud Hargrove perpetrated on the court, the claims are dismissed against all defendants with prejudice. The Clerk of the Court is directed to close the case.

SO ORDERED.

OPINION & ORDER

Hon. HAROLD BAER, JR., District Judge.

*1 Plaintiff Edward Harrison ("Harrison" or "Plaintiff) brings this pro se civil rights action pursuant to 42 U.S.C. § 1983 against Defendants Glenn Goord, William Mazzuca, Roland Larkin, Carlton Good, Arlan Pelc, James Buonato, Charles Hobbs, Dale Larsen, Sgt. Rama, Richard Woodward, Nicholas Volhos, Kenneth Conklin, Rene Hernandez, Frank Woodward, and Enrique Torres, [1] claiming that he was subject to cruel and unusual punishment due to the conditions of his confinement, harassment, retaliation and mail tampering in violation of his rights under the First, Eighth and Fourteenth Amendments. On January 21, 2009, Defendants[2] moved for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure on the grounds that (1) Harrison failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a); (2) Harrison's allegations are incredible as a matter of law; (3) Harrison's allegations fail to state a cause of action for a constitutional violation; (4) Defendants are entitled to qualified immunity; (5) Defendants lacked personal involvement; and (6) Harrison has failed to establish deliberate indifference. Plaintiff opposed Defendants' motion. For the reasons set forth below, Defendants' motion for summary judgment is granted.

I. FACTUAL BACKGROUND[3]

Harrison has been incarcerated in the DOCS system since 2002. See Deposition of Edward Harrison ("Harrison Dep.") at 5:21-25. He was transferred from Five Points Correctional Facility Special Housing Unit ("Five Points") to Fishkill Special Housing Unit ("Fishkill") in July 2004. Complaint ("Compl.") ¶ 38. Before his transfer, Harrison had filed several grievances regarding misbehavior reports he had been issued at Five Points relating to an alleged work stoppage, which is unrelated to the allegations of this case. See Harrison Dep. at 100:5-101:6. Shortly after arriving at Fishkill, in July 2004, Harrison was visited by a Mr. Davidow of the Inspector General's Office, who interviewed Harrison regarding his grievances related to the events that had occurred at Five Points. See Compl. ¶ 40. Directly after the interview with Inspector Davidow, as he was being escorted from the interview room to his housing unit, Defendants Conklin and Volhos warned Harrison that he should not have been contacting the Inspector General's office. Id. ¶ 41.Plaintiff alleges that beginning with this incident in July 2004, Defendants began a pattern of harassment and confrontation in retaliation for Harrison's complaints of events that occurred in correctional facilities.

Plaintiff does not allege that he encountered any other threats or harassment relating to this incident until over two months later, on September 25, 2004, when Defendant Volhos came to his cell to make it "verbally clear that Plaintiff could and would get physically hurt or injurred [sic ]."Id. ¶ 42.[4] As a result of this confrontation, Harrison filed a formal complaint against Defendant Volhos. Id. ¶ 43. Several days later, after escorting him back to his cell after a dentist's appointment, Defendant Conklin failed to remove Harrison's shackles for upwards of 45 minutes. Harrison Dep. at 16:2-6. Plaintiff filed a formal complaint against Defendant Conklin as a result of this incident. Compl. ¶ 45. Several days later, Defendant Conklin approached Harrison in his cell block and called Harrison a "rat;" thereupon, Plaintiff filed another complaint against Defendant Conklin. Id. ¶ 46-47.Several days later, Defendants Larson and Frank Woodward visited Harrison's cell to investigate a complaint, where Woodward verbally abused Harrison, using curse words and a racial slur, and told Harrison to stop filing grievances. Id. ¶ 48.Defendant Larson, who was Defendant Frank Woodward's supervisor, merely stood by and did nothing. Id. Plaintiff filed yet another formal complaint based on this incident. Id. ¶ 49.

*2 Approximately one month later, Plaintiff was issued a number of misbehavior reports, including for possession of contraband, destruction of property, and failure to obey a direct order. See id. ¶¶ 50-52; Pl. Aff. Exh. 2, 3, 6. Plaintiff alleges that these misbehavior reports were issued in retaliation for having spoken with the Inspector General in July and for filing complaints against the various corrections officers at Fishkill. See Compl. ¶¶ 51-54. Plaintiff alleges that he appealed these "tickets" but never received any reply. Id. ¶¶ 58-59.As a consequence of having been "written up, " Harrison was moved from his cell on the second floor to a different cell on the first floor. See id. ¶ 60.While escorting Harrison to the new cell, Defendant Hernandez told Harrison he was lucky he didn't fall and hurt himself on the walk down the stairs; Harrison interpreted this statement as a threat. See id. ¶ 61.Upon arriving in the cell, Harrison noticed a small amount of water that had collected on the floor, but did not complain about it. See Harrison Dep. at 97:22-98:7. As it turned out, the shower in the cell "did not have the proper equipment" and every time Harrison took a shower, the shower drain would back-up and approximately an inch and a half of water would collect on the cell floor. Compl. ¶¶ 64-67; Harrison Dep. at 98:17-24. The cell was designated for handicapped inmates, and the flooding was apparently caused by the fact that the shower, which could accommodate a wheelchair, had a low "lip" and allowed water to spill over from the shower area into the cell. Harrison Dep. at 19:21-20:5; Declaration of Dale Larsen ("Larsen Decl.") ¶ 6. Because the door to the recreation pen ("rec pen") attached to the cell let in a draft, the water on the floor would become "freezing cold" and the collected water was "dirty" and "filthy." Compl. ¶ 68. Harrison alleges he informed numerous officers of the problem with the shower, but his complaints and requests for cleaning supplies were ignored. Id. ¶ 69.He further alleges that Sergeant Woodward was aware of the flooding situation, but did nothing to remedy it. Id. ¶¶ 71-72.Harrison and his cellmate both filed grievances concerning the shower conditions. Id. ¶ 75.Harrison also personally told Defendant Goode about the situation, and Goode told Harrison "he would look into the problem, " but Harrison was never told what was being done to correct the problem. Id. ¶¶ 77-78.Unrelated to the shower conditions, on October 31, 2004, Plaintiff wrote a grievance complaining that he was being deprived of communication with his family, that his legal mail was being interfered with, that he was denied certain personal items and that he had been placed in mechanical restraints without due process. Id. ¶ 79-80.

On December 17, 2004, when Defendant Conklin was escorting Harrison's cellmate out of the cell, per standard procedure, he asked Harrison to step outside into the rec pen area. See Harrison Dep. at 64:13-23; Compl. ¶ 82; Declaration of Kenneth Conklin ("Conklin Decl.") ¶ 7. At the time, Harrison was dressed only in his undergarments. See Harrison Dep. at 64:5-6. As the door to the rec pen was closing, Defendant Conklin ordered Harrison to get dressed in his winter clothing, but he did not. Id. at 65:4-10.Plaintiff alleges that Conklin left him locked out in the rec pen in his underwear for an excessive period of time. Compl. ¶ 82. As a result of this incident, Defendant Conklin issued Plaintiff a misbehavior report for failure to obey a direct order. Pl. Aff. Exh. 14. Plaintiff filed a formal complaint relating to this incident. See Declaration of Arlan Pelc ("Pelc Decl.") U 6, Ex. A. Plaintiff received a response from Defendant Pelc regarding this incident, to which he replied on December 31, 2004. See Compl. ¶ 90. Thereafter, Plaintiff embarked on a prolific letter-writing campaign, writing approximately 100 letters from December 2004 to February 2005, both internal and external, to various individuals and organizations such as Commissioner Goord, the Inspector General's office, the Bureau of Prisons, the Legal Aid Society and the American Civil Liberties Union. See id. UU 86, 88-96, 98-99, 101-111. Plaintiff does not specify the contents of these letters or the grievances to which they may have related.

*3 Plaintiff does not dispute that he never appealed any of the formal grievances he did file that relate to the incidents that give rise to this lawsuit. Plaintiff alleges that, notwithstanding his many complaints and grievances, he received no responses to the majority of his correspondence. Because he never heard back, Plaintiff alleges the Defendants must have been tampering with his mail and causing it to be destroyed or deflected from its intended destination. However, Plaintiff testified at his deposition that he observed his grievances and letters being deposited into the locked box designated for outgoing mail, that he doesn't know who has the keys to the mailbox, and that his only basis for the contention that his mail was tampered with is that he never received responses to his grievances and letters. See Harrison Dep. at 84:13-91:7; see also id. at 73:2-11.

II. LEGAL STANDARD

A motion for summary judgment must be granted if the moving party shows "there is no genuine issue as to any material fact" and it "is entitled to judgment as a matter of law."Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment should be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In showing the existence of a genuine issue of material fact, "the non-moving party may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that its version of the events is not wholly fanciful." Golden P. Bancorp v. F.D.I.C., 375 F.3d 196, 200 (2d Cir.2004); see also Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (finding party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts"). Rather, he "must come forward with evidence sufficient to allow a reasonable jury to find in [his] favor."Brown v. Henderson, 257 F.3d 246, 252 (2d Cir.2001); see alsoFed.R.Civ.P. 56(e) ("When a motion for summary judgment is made and supported as provided in [the] rule, ... the adverse party's response... must set forth specific facts showing that there is a genuine issue for trial.") (emphasis added). The facts must be presented in a form that would be admissible at trial. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir.2008). Even if the parties dispute material facts, summary judgment must be granted "unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Id.

Where, as here, the party opposing summary judgment is proceeding pro se, the Court must "read the pleadings... liberally and interpret them to raise the strongest arguments that they suggest." Corcoran v. New York Power Auth., 202 F.3d 530, 536 (2d Cir.1999); see also Jacobs v. Ramirez, 400 F.3d 105, 106 (2d Cir.2005). Still, "proceeding pro se does not otherwise relieve [a party] from the usual requirements of summary judgment." Price v. Engert, 589 F.Supp.2d 240, 244 (W.D.N.Y.2008) (internal quotation marks and citation omitted). As is well-established by both the Supreme Court and the Second Circuit, even pro se litigants must comply with the relevant law and procedures. See McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) ("While we have insisted that the pleadings prepared by [ pro se ] prisoners be liberally construed... we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel."); Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 477 (2d Cir.2006) ("[P ]ro se status does not exempt a party from compliance with relevant rules of procedural and substantive law.") (citation omitted).

III. DISCUSSION

*4 "In an effort to address the large number of prisoner complaints filed in federal court, Congress enacted the [PLRA]. Among other reforms, the PLRA... requires prisoners to exhaust prison grievance procedures before filing suit."Jones v. Bock, 549 U.S. 199, 202, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (citations omitted)."The Supreme Court has held that the PLRA's 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.'" Macias v. Zenk, 495 F.3d 37, 40 (2d Cir.2007) (quoting Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002)). The exhaustion provision of the PLRA states:

No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], 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.

42 U.S.C. § 1997e(a). The exhaustion requirement "allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court." Jones, 549 U.S. at 204. As the Supreme Court has held, "[t]here is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court." Id. at 211 (citation omitted). Moreover, the Supreme Court has held that the PLRA requires "proper exhaustion" of administrative remedies. Woodford v. Ngo, 548 U.S. 81, 101, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006)."Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Id. ; see also Davis v. State of New York, No. 07-3262-pr, 2009 U.S.App. LEXIS 3439, at *3, 2009 WL 424151 (2d Cir. Feb. 20, 2009). Thus, for example, "filing an untimely or otherwise procedurally defective administrative grievance or appeal" does not satisfy the PLRA's exhaustion requirement. See Woodford, 548 U.S. at 83-84. Moreover, "[i]n the wake of Woodford, an inmate can no longer claim that partial exhaustion of administrative remedies is sufficient because prison officials have notice of his claim." Petrucelli v. Hasty, 05-cv-2002 (DLI)(LB), 2009 U.S. Dist. LEXIS 24889, at *17, 2009 WL 766200 (E.D.N.Y. Mar. 25, 2009) (citing Macias, 495 F.3d at 43 (overruling Braham v. Clancy, 425 F.3d 177, 183 (2d Cir.2005)). As the Second Circuit has noted, this "proper exhaustion" requirement is necessary because the "benefits of exhaustion can be realized only if the prison grievance system is given a fair opportunity to consider the grievance." Macias, 495 F.3d at 41. Prisoners are required to exhaust their administrative remedies "even if they believe that administrative remedies would be ineffective or futile." Johnson v. Killian, No. 07 Civ. 6641(LTS)(DFE), 2009 U.S. Dist. LEXIS 34670, at *8, 2009 WL 1066248 (S.D.N.Y. Apr. 21, 2009) (citation omitted); see also Booth v. Churner, 532 U.S. 731, 741 n. 6, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001) ("We will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise.").

*5 As the Supreme Court has noted, "it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion." Jones, 549 U.S. at 218. Thus, all that the PLRA requires is compliance with the prison's grievance procedures. Id. In this case, Defendants' undisputed evidence indicates that DOCS maintains a three-tiered grievance procedure, as set forth in the New York Code, Rules and Regulations ("N.Y.C.R.R.").7 N.Y.C.R.R. § 701.5. Full exhaustion of administrative remedies in the New York system requires compliance with all three steps of the grievance procedure. Veloz v. New York, 339 F.Supp.2d 505, 514 (S.D.N.Y.2004) ("Complete exhaustion of the... administrative remedies through the highest level for each claim is required."). First, the inmate must file a complaint within twenty-one calendar days of the incident about which he is complaining. 7 N.Y.C.R.R. § 701.5(a); Declaration of Karen R. Bellamy ("Bellamy Decl.") ¶ 3. Upon receiving the complaint, the Inmate Grievance Resolution Committee ("IRGC"), which is made up of inmates and prison officials, has sixteen calendar days to resolve the matter informally, or if that is unsuccessful, to hold a hearing. 7 N.Y.C.R.R. § 701.5(b). After a hearing, the IGRC has two working days to reach a decision. Id. at § 701.5(b)(3). The second step in the process, after an adverse decision on an initial grievance, the grievant may file an appeal with the superintendent of the facility within seven calendar days of the superintendent's determination. 7 N.Y.C.R.R. § 701.5(c), 701.8(h); Bellamy Decl. ¶ 6. Third, if the inmate is not satisfied with the superintendent's response, he may then appeal to the Central Office Review Committee ("CORC").7 N.Y.C.R.R. 701.5(d). Where an inmate alleges harassment on the part of prison personnel, the procedure provides for an expedited grievance process wherein the first step is skipped and the complaint is made directly to the official's supervisor in the first instance. 7 N.Y.C.R.R. § 701.8; Bellamy Decl. ¶ 4-5. However, even when this alternative procedure is prescribed, "the final step in the grievance procedure always remains the appeal to CORC."Gardner v. Daddezio, 07 Civ. 7201(SAS), 2008 U.S. Dist. LEXIS 92715, at *9, 2008 WL 4826025 (S.D.N.Y. Nov. 5, 2008) (citing 7 N.Y.C.R.R. § 701.8(h)).

In this case, it is undisputed that Harrison failed to exhaust administrative procedures as to any of his sixteen causes of action. While the record shows that Harrison filed at least one formal I.R.G.C. complaint relating to incidents giving rise to this lawsuit, see Pelc Decl., Ex. A, he never appealed any of these grievances to the CORC. See Bellamy Decl. ¶ 10, Exh. A.[5] Each of his claims in this lawsuit is grievable under the expedited procedure for filing of harassment complaints, described above. Id. ¶ 9. However, Harrison argues that his failure to exhaust should be excused under the Second Circuit's line of cases, beginning with Hemphill v. New York, 380 F.3d 680 (2d Cir.2004), that recognized certain exceptions to the exhaustion requirement. Specifically, Harrison argues that "although prison officials provided grievance forms, they unlawfully confiscated Plaintiff's mail and threatened him, thereby essential[ly] barring Plaintiff from exhausting his administrative remedies."Plaintiff's Memorandum of Law ("Pl.Mem.") at 8.

*6 Under the Hemphill line of cases, a court must make a three-step inquiry before it dismisses a prisoner's complaint for failure to exhaust his remedies. First, a court should consider whether administrative remedies were unavailable. Hemphill, 380 F.3d at 686; Abney v. McGinnis, 380 F.3d 663, 668 (2d Cir.2004) ("A court may not dismiss for failure to exhaust administrative remedies unless it determines that such remedies are available.") (alterations and citations omitted). The test for assessing the availability of administrative remedies is "an objective one: that is, would a similarly situated individual of ordinary firmness have deemed them available." Hemphill, 380 F.3d at 686. Second, a court should inquire into whether the defendant's actions, by threat or otherwise, inhibited the inmate's exhaustion of remedies, so as to estop the defendant from raising the plaintiff's failure to exhaust as a defense. Hemphill, 380 F.3d at 686;see also Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir.2004) (finding exhaustion is not jurisdictional, but that it is an affirmative defense that is subject to estoppel). Finally, a court should consider whether there are "special circumstances" that plausibly justify the prisoner's failure to comply with administrative procedure, such as a reasonable misinterpretation of the requirements of the prison system's regulations. Hemphill, 380 F.3d at 686, 689. The existence of such special circumstances "must be determined by looking at circumstances which might understandably lead usually uncounselled prisoners to fail to grieve in the normally required way." Giano v. Goord, 380 F.3d 670, 678 (2d Cir.2004).[6]

In this case, Harrison argues that he "tried to exhaust administrative remedies" but was unable to do so because he was threatened and because his mail was tampered with. See Pl. Mem. at 6-8. It is unclear whether, by making this argument, Harrison contends that administrative avenues were not available to him, under the first prong of the Hemphill analysis, or whether he contends that Defendants hampered his ability to exhaust and are thus estopped from raising the failure to exhaust as a defense, under the second Hemphill prong. See 380 F.3d at 686. With respect to whether administrative remedies were available, the Second Circuit has held that "threats or other intimidation by prison officials may well deter a prisoner of ordinary firmness from filing an internal grievance, but not from appealing directly to individuals in positions of greater authority within the prison system, or to external structures of authority such as state or federal courts."Id. at 688.Moreover, Plaintiff admits that he was provided with grievance forms by prison officials, Pl. Mem. at 8, and that he filed numerous complaints, both formally and informally. Indeed, Plaintiff testified that he personally observed his formal complaints being deposited into a locked box designated for IRGC complaints. Additionally, viewed in the light most favorable to Plaintiff, the record reflects that he continued to file grievance after grievance during the same period of time when he was allegedly being threatened and harassed and his mail was allegedly being tampered with. The last threat that Harrison alleges any of the Defendants made to him was in October 2004, when Defendant Hernandez commented that Harrison was lucky he didn't fall and hurt himself on the stairs while being escorted to his new cell. However, almost immediately upon arriving at the new cell, Harrison began grieving the condition of the shower. He continued to file grievances throughout the winter of 2004 up through his transfer from Fishkill in February 2005. Accordingly, it is apparent that a reasonable person of ordinary firmness in Harrison's position, as well as Harrison himself, would not have thought that administrative remedies were unavailable, and Harrison has not satisfied the first prong of the Hemphill analysis. See, e.g., Winston v. Woodward, No. 2:05 Civ. 3385(RJS), 2008 U.S. Dist. LEXIS 43208, at *21-23, 2008 WL 2263191 (S.D.N.Y. May 30, 2008) (finding that plaintiff's attempts to file grievances and appeals "cuts against his contention that administrative remedies were functionally unavailable to him"); Amador v. Superintendents of Dep't of Corr. Servs., No. 03 Civ. 0650(KTD), 2007 U.S. Dist. LEXIS 89648, at *28, 2007 WL 4326747 (S.D.N.Y. Dec. 4, 2007) (rejecting plaintiffs claims that administrative remedies were made unavailable by prison officials' threats against them because the fact that plaintiffs were able to file formal grievances "directly [cut] against" their argument that remedies were unavailable).

*7 Plaintiff also appears to argue that because his mail was tampered with, Defendants should be estopped from raising his failure to exhaust his remedies as a defense. However, Plaintiff has presented no evidence from which a reasonable jury could conclude that the Defendants were engaged in mail tampering. It is true that Plaintiff has alleged that he sent numerous complaints and grievances, and that he never received a response; he also notes that M.P. Stone, an officer on the IRGC, informed him that the Committee never received any of his grievances and advised him that he could resubmit them, which he did. However, as Plaintiff acknowledged at his deposition, his only reason for believing that his mail was actually being tampered with was that he never received any responses to his many grievances and letters. He has no proof that his mail was ever opened or tampered with, and if it was, that it was the Defendants who engaged in such misconduct. Cutting even further against his contentions is the fact that he personally observed his mail being deposited into a locked box, and that he does not know who has the key to open that mail box. Since Harrison cannot present any evidence that the Defendants even had access to his mail, there is certainly insufficient evidence that they tampered with it. See Petrucelli, 2009 U.S. Dist. LEXIS 24889 at *25-27, 2009 WL 766200 (finding plaintiff failed to fully exhaust administrative remedies because, although he suggested that prison officials had either inadvertently or intentionally failed to mail his appeal, he had provided no evidence to support this claim); Winston v. Woodward, 2008 U.S. Dist. LEXIS 43208 at *24, 26, 2008 WL 2263191 (finding that because plaintiff failed to produce any direct or circumstantial evidence to substantiate plaintiff's claims of mail tampering, he failed to satisfy PLRA's exhaustion requirement); see also Rauso v. Vaughn, No. 96-6977, 2000 U.S. Dist. LEXIS 9035, at *, 2000 WL 873285 (E.D.Pa.2000) (dismissing mail tampering claim because "[a]t a minimum, Plaintiff had to create a record" connecting defendant's knowledge of grievances against him to mail tampering, and "there [was] no evidence that defendant... ever tampered with Plaintiff's mail"). Moreover, there is direct evidence, provided by Harrison himself, that indicates that during the same timeframe when Harrison alleges his mail was being destroyed, his mail was indeed reaching its intended destination. See, e.g., Pl. Aff. Ex. 16 (12/18/04 letter to "I.R.G.C." stamped "Received" by Inmate Grievance Program 12/20/04); Pl. Aff. Ex. 22 (1/6/05 letter acknowledging receipt of Harrison's complaint dated 12/25/04). Thus, although there may be some "metaphysical doubt" as to whether someone somewhere tampered with Harrison's mail, see Matsushita, 475 U.S. at 586-87, there is no evidence that any such misconduct occurred so that Harrison may survive dismissal of his claims based on his estoppel argument.[7] Plaintiff did not argue that any special circumstances excuse his failure to exhaust administrative remedies, and the Court can conceive of none based on the record before it.

*8 It should be noted that although the undisputed evidence shows that Harrison did verbally convey his grievances to several of the Defendants, and that he sent numerous letters to various individuals and organizations relating to his complaints, including to the Superintendent of Fishkill and the Commissioner of DOCS, these efforts, for better or worse, just don't cut the mustard so as to satisfy the strict exhaustion requirement. See Collins v. Goord, 438 F.Supp.2d 399, 413 (S.D.N.Y.2006) ("Although Collins wrote letters and completed forms in repeated efforts to obtain photocopies, these letters and forms are not sufficient absent facts excusing Collins' use of the IGP process."); Lee v. Carson, 310 F.Supp.2d 532, 537 (W.D.N.Y.2004) (holding that prisoner could not exhaust by verbally conveying grievance to two prison guards); Colon v. Farrell, No. 01 Civ. 6480(FE), 2004 WL 1126659, at *5 (W.D.N.Y. Sept. 23, 2004) (noting that "letters of complaints to DOCS employees and officials do not satisfy the grievance procedure exhaustion requirement"); Conner v. Hurley, No. 00 Civ. 8354(LTS)(AJP), 2004 WL 885828, at *2 (S.D.N.Y. Apr. 26, 2004) (explaining that letters to facility superintendent and DOCS commissioner "may not be deemed substitutes for strict compliance with the requirements of the IGP"). In addition, even assuming that Harrison filed the initial complaints that he claims to have filed, and never received a response, this does not excuse the failure to exhaust his remedies. See7 N.Y.C.R.R. § 701.8; Donahue v. Bennett, 02-CV-6430 CJS (B), 2004 U.S. Dist. LEXIS 17189, at *20, 2004 WL 1875019 (W.D.N.Y. Aug. 17, 2004) ("Plaintiff is incorrect when he argues that the failure of prison officials to respond to a grievance eliminates further obligations on plaintiff's part."); Lashley v. Artuz, No. 01-Civ.-11542 (SAS), 2004 U.S. Dist. LEXIS 9707, at *5-6, 2004 WL 1192090 (S.D.N.Y. May 27, 2004) (noting that "[e]ven where an inmate receives no response to his initial level grievance, he is still required to file an appeal in order to satisfy the exhaustion requirement"); Arce v. Keane, No. 01 Civ. 2648(BSJ), 2004 U.S. Dist. LEXIS 3698, at *7, 2004 WL 439428 (S.D.N.Y. Mar. 9, 2004) ("An inmate's failure to appeal a grievance is not excused because he has received no response to his initial grievance."); see also Bellamy Decl. U 7 ("[I]f an inmate does not receive a response to a grievance alleging employee harassment in a timely fashion, he may appeal his grievance to CORC by filing a notice of decision to appeal with the Inmate Grievance Program clerk at his facility.") (citing 7 N.Y.C.R.R. § 701.8(g)). Thus, because there is no dispute that Harrison did not appeal any of his grievances to which his claims in the instant lawsuit relate to the CORC, as required by the DOCS grievance procedure, and because Harrison has not sufficiently shown that any of the exceptions under Hemphill excuses his failure to exhaust, summary judgment in favor of the Defendants is appropriate on all of Harrison's claims. As such, the Court need not address Defendants' myriad other arguments in support of their motion for summary judgment.

*9 Typically, the dismissal of a claim for failure to exhaust administrative remedies is without prejudice, because a "prisoner who brings suit without having exhausted these remedies can cure the defect simply by exhausting them and then reinstituting his suit."Berry v. Kerik, 366 F.3d 85, 87 (2d Cir.2004) (quoting Snider v. Melindez, 199 F.3d 108, 111-12 (2d Cir.1999)). However, "where exhaustion was required but administrative remedies have become unavailable after the prisoner had ample opportunity to use them and no special circumstances justified failure to exhaust, " dismissal with prejudice is warranted. Id. at 88.Here, Defendants have not argued that dismissal should be with prejudice, nor have they shown that administrative remedies have become unavailable. See Donahue, 2004 U.S. Dist. LEXIS 17189, at *27 & n. 13, 2004 WL 1875019.Accordingly, although dismissal is appropriate due to Harrison's failure to exhaust his remedies, such dismissal will be without prejudice to Plaintiff's ability to re-file in accordance with the DOCS procedure, appealing those grievances to the CORC, and reinstating the instant suit.

Should Harrison choose to pursue his administrative remedies and file a new federal complaint, the court advises him to be mindful of the requirement that all defendants in a suit under 42 U.S.C. § 1983 must be shown to have been personally involved in the constitutional violations alleged. "It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991)). A supervisor may be shown to be personally involved if:

(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.

Colon v. Coughlin, 58 F.3d 865, (2d Cir.1995) (citations omitted). The doctrine of respondeat superior does not apply to claims under § 1983; that is, a defendant cannot be held liable merely because he occupied a supervisory position. See Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981); Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir.1985) ("[P]laintiffs claim for money damages against [the Commissioner] requires a showing of more than linkage in the prison chain of command.")."Further, a Section 1983 plaintiff must allege a tangible connection between the acts of the defendant and the injuries suffered." Brown v. Eagen, 08-CV-0009 (TJM/DRH), 2009 U.S. Dist. LEXIS 24876, at *16-17, 2009 WL 815724 (N.D.N.Y. Mar. 26, 2009) (citations omitted). A complaint that fails to allege personal involvement is "fatally defective on its face." Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir.1987). Here, in particular, although it is unnecessary to explicitly decide at this time, the Court is skeptical as to whether valid claims exist as against Defendants Goord, Mazzuca, Larkin, Goode, Buonato, Hobbs, Larson, or Rama. Plaintiff should be aware that prison supervisors cannot be deemed personally involved based simply on a response to a complaint, and should Plaintiff draft a new complaint, he is advised to analyze the validity of naming each defendant before filing any such complaint. See Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir.1997). For instance, the receipt by certain defendants of letters complaining of alleged constitutional violations do not necessarily indicate that those defendants satisfy the personal involvement requirement, even if the letters are "ignored"; when the letters are forwarded to the appropriate party, supervisory personnel is entitled to rely on the established administrative complaint system to resolve the issue. See, e.g., id. (holding DOCS Commissioner not liable for referring plaintiff's first letter of appeal to subordinate or for summarily responding to plaintiff's second letter requesting a status update on his appeal); Westbrookv. City Univ. of N.Y., 591 F.Supp.2d 207, 225 (E.D.N.Y.2008) ("Even if [defendant] had not forwarded plaintiff's letters, ... the fact that an official ignored a letter alleging unconstitutional conduct is not enough to establish personal involvement.") (citations omitted); Ortiz-Rodriguez v. New York State Dep't of Corr. Servs., 491 F.Supp.2d 342, 347 (W.D.N.Y.2007); Greene v. Mazzuca, 485 F.Supp.2d 447, 452 (S.D.N.Y.2007); Swindell v. Supple, 02-CV-3182, 2005 WL 267725, at *10 (S.D.N.Y. Feb.3, 2005); Gayle v. Lucas, 97 Civ. 0883(MGC), 1998 U.S. Dist. LEXIS 3919, at *11-12, 1998 WL 148416 (S.D.N.Y. Mar. 30, 1998).

*10 Since this argument is persuasive, I decline to examine the remaining concerns voiced by the Defendants.

IV. CONCLUSION

For the foregoing reasons, Defendants' motion for summary judgment is GRANTED and Plaintiffs complaint is dismissed without prejudice. The Clerk of this Court is instructed to close all open motions in this matter and remove the matter from my docket.

IT IS SO ORDERED.

MEMORANDUM AND ORDER

BUCHWALD, District J.

*1 Plaintiffs Anthony Beasly, Anthony Jackson, Jose Santos, and Pete Thomas ("plaintiffs"), former inmates at the Fishkill Correctional Facility ("Fishkill"), bring this action against various prison officials and entities seeking damages and declaratory and injunctive relief pursuant to 42 U.S.C. § 1983. They allege exposure to toxic substances and unreasonably hazardous working conditions in violation of their Eighth and Fourteenth Amendment rights. Defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the ground that two of the plaintiffs failed to exhaust their administrative remedies. For the reasons discussed below, defendants' motion is denied without prejudice.

BACKGROUND[1]

Fishkill is operated by the New York State Department of Correctional Services ("Department of Correctional Services"). The Division of Correctional Industries ("Corcraft") is the manufacturing division of the Department of Correctional Services. While incarcerated at Fishkill, plaintiffs were employed in Fishkill's industry paint shop, which is a Corcraft facility.

Plaintiffs allege that during the course of their employment at the paint shop they were exposed to dangerous substances, were not provided with adequate training on handling those substances, and were not provided appropriate safety equipment. Plaintiffs further allege that as a result of these conditions, they suffered from sinus problems, bouts of dizziness, chest pains, various respiratory and cardiovascular disorders, and an increased risk of developing future respiratory and cardiac complications.

Plaintiffs Jose Santos and Pete Thomas exhausted their administrative remedies by appealing their grievances all the way up to the Central Office Review Committee of the Department of Correctional Services. Defendants' Statement of Material Fact ("Defendants' Statement"), ¶¶ 52-54.

Plaintiff Beasly maintains that he was on his way to file a grievance concerning inadequate safety equipment at the paint shop when he encountered an Officer Geronimo, from whom he requested a pass he would need to take his grievance to the appropriate office for filing.[2] Beasly Declaration ("Beasly Decl."), ¶¶ 4-5. Mr. Beasly further maintains that at this point, Officer Geronimo and a Sergeant McCarroll told him there was no need for him to file a grievance since Mr. Thomas was filing a similar grievance. Id. at ¶¶ 6-7.According to Mr. Beasly, this was the reason he did not file a complaint. Id. at 8.

Plaintiff Anthony Jackson alleges that he filed a grievance concerning paint shop conditions at the Fishkill grievance office, and that when this grievance was denied, he appealed, first to the Superintendent of Fishkill, and then to the Central Office Review Committee. Jackson Declaration ("Jackson Decl."), ¶¶ 6-14. However, Defendants dispute these facts. Defendants' Reply Memorandum of Law in Support of Their Motion for Summary Judgment ("Def. Reply Memo."), 6-7.

DISCUSSION

I. The Legal Standards

*2 The Prison Litigation Reform Act ("the Act") provides that "[n]o action shall be brought with respect to prison conditions under [Section 1983], 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."42 U.S.C. § 1997e(a). As recently stated by the Supreme Court in Porter v. Nussle , this provision of the Prison Litigation Reform Act "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." 534 U.S. 516, 122 S.Ct. 983, 992, 152 L.Ed.2d 12 (2002). A plaintiff must file a valid grievance and exhaust all appeals prior to bringing suit, or the case will be dismissed, regardless of whether the plaintiff attempts to exhaust after the suit is filed. Neal v. Goord, 267 F.3d 116, 117-118 (2d Cir.2001).

[1] Defendants base their summary judgment motion on failure to exhaust. They grant that Mr. Santos and Mr. Thomas have exhausted their administrative remedies in compliance with the Act. Def. Reply Memo. at 1 n. 1. However, they assert that Mr. Beasly and Mr. Jackson have not. Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment ("Def. Memo. of Law"), 3.

Summary judgment is properly granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."Fed.R.Civ.P. 56(c). The Federal Rules of Civil Procedure mandate the entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In reviewing the record, we must assess "the evidence in the light most favorable to the party opposing the motion, and resolve ambiguities and draw reasonable inferences against the moving party.".Frito-Lay, Inc. v. LTV Steel Co. (In re Chateuagay Corp.), 10 F.3d 944, 957 (2d Cir.1993). In order to defeat such a motion, the non-moving party must affirmatively set forth facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is "genuine... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248 (internal quotation marks omitted).

II. Plaintiff Beasley

We deal with plaintiff Beasly first. Though he does not contend that he physically filed, he does assert that there is a triable issue of fact as to whether the normal administrative remedies of the Department of Correctional Services were "available" to him under the Act. Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment ("Pl. Memo. of Law"), 10-11. Specifically, Mr. Beasly contends that on or about March of 2000, he filled out a grievance form, attempted to file it, and was met by Officer Geronimo and Sergeant McCarroll who, when he requested a pass to allow him to file the form, told him there was no need to file such a form. Beasly Decl. at ¶¶ 4-8.

*3 This court has held that, where a prisoner has made a "reasonable attempt" to file a grievance, and prison officials have prevented the prisoner from filing that grievance, the grievance procedures are not "available" to the defendant, and thus the Act does not preclude the prisoner from suing in federal court. O'Connor v. Featherston, No. 01 Civ. 3251(HB), 2002 U.S. Dist. LEXIS 7570, at *5-*6 (S.D.N.Y. Apr. 29, 2002).[3] See also Rodriguez v. Hahn, 99 Civ. 11663(VM), 2000 U.S. Dist. LEXIS 16956, at *4-*5 (S.D.N.Y. Nov. 20, 2000) (refusing to dismiss on grounds of failure to exhaust where there is evidence of a "reasonable attempt" to exhaust and allegations that "corrections officers never filed some... grievances"); Gonzalez v. Officer in Charge of Barber Shop, 99 Civ. 3455(DLC), 2000 U.S. Dist. LEXIS 2875, at *8-*10 (S.D.N.Y. Mar. 13, 2000) (refusing to dismiss on grounds of exhaustion where plaintiff was "frustrated" in his attempts to file grievances by prison officials).

We note that defendants have as yet offered no evidence concerning whether Officer Geronimo or Sergeant McCarroll has any recollection of the events described by Mr. Beasley, and if so, what that recollection is. We believe that on the record presented, a reasonable fact-finder could conclude that Mr. Beasley's actions represented a reasonable attempt to file, and that the prison officials prevented Mr. Beasly from doing so.[4]

III. Plaintiff Jackson

[2] Mr. Jackson, however, maintains that he actually filed a grievance and exhausted the process. Defendants contend otherwise. Mr. Jackson states he has a specific recollection of having appeared before a grievance panel some time in or about April of 1999 for a hearing of approximately twenty minutes. Jackson Decl. at 8-9. Upon losing the hearing, he says he mailed an appeal the same day. Id. at 9-10.Mr. Jackson claims that when that appeal was denied, he mailed on the next day the final appeal required under the grievance procedures, an appeal to the Central Office of the Department of Correctional Services. Id. at 11-12.That appeal, he says, was denied. Id. at 13.

In response, defendants submit a declaration by Thomas Eagen, Director of the Inmate Grievance Program for the Department of Correctional Services. Mr. Eagen states: "After review of my records, I can establish that... Anthony Jackson... did not file a grievance regarding working conditions at the Fishkill paint shop."Declaration of Thomas J. Eagen ("Eagen Decl."), ¶ 4.[5]

The Eagen declaration, upon which defendants would have this Court grant them summary judgment, is totally conclusory. It does not even describe the search that was done, whether any search was conducted beyond the program's computerized records, or describe all the places where records of Mr. Jackson's grievance could be found. There is no indication that records of adjudicating officials were checked. Nor is there any information on record retention policies. For example, once filed and adjudicated, what happens to grievance records? How long are records of grievances maintained?[6] What safeguards are in place to insure that records are not lost? Satisfactory answers to these questions would be necessary before we could consider granting summary judgment against Mr. Jackson.[7]

CONCLUSION

*4 Accordingly, we deny defendants' motion for summary judgment without prejudice.

IT IS SO ORDERED.


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