United States District Court, S.D. New York
November 14, 2014
Robert Fuentes, Plaintiff,
B. Furco and Dana Gage, Defendants
Robert Fuentes, Plaintiff, Pro se, Ossining, N.Y. USA.
For B. Furco, RN-Nurse Administrator, Dana Gage, MD FHSH, Defendants: Maria Barous Hartofilis, LEAD ATTORNEY, Attorney General of the State of New York, New York, N.Y. USA.
MEMORANDUM AND ORDER
ALISON J. NATHAN, United States District Judge.
In its Memorandum and Order dated September 25, 2014, this Court converted Defendants' motion to dismiss into a motion for summary judgment and dismissed Plaintiff's claims without prejudice on the narrow issue of failure to exhaust administrative remedies. Dkt. No. 28. The Court further held that if no Central Office Review Committee (" CORC") decision was rendered within 30 days from the date of that Order, Plaintiff would be able to re-file his complaint with this Court, which would re-open the case and, upon reopening, would deem his administrative remedies unavailable. Dkt. No. 28 at 6. On October 14, 2014, Plaintiff filed a notice of appeal to the Second Circuit Court of Appeals. Dkt. No. 30. On October 21, 2014, the Defendants informed the Court that CORC rendered its decision on Plaintiff's grievance on March 19, 2014, Dkt. No. 31-1. The Court then issued an order to show cause why this Court should not relieve Plaintiff Robert Fuentes of this Court's order dated September 25, 2014. Dkt. No. 32.
Defendants B. Furco and D. Gage contend that their failure to inform the Court that the CORC had rendered a decision on Plaintiff's grievance does not provide a basis to reinstate this matter because Plaintiff did not exhaust his administrative remedies prior to filing the federal lawsuit.
As discussed in this Court's prior Memorandum and Order, the law is less than clear regarding the effect of CORC's failure to respond to an inmate-plaintiff's appeal within the 30 days provided for in Section 701.5(d)(3)(ii) of Title 7 of New York's Codes, Rules and Regulations (N.Y.C.R.R.). Indeed, much of the Court's analysis was focused on the conundrum that is presented when (a) an inmate-plaintiff has complied with all of the requirements expected of him under an inmate grievance program, but (b) the institution has failed to comply with the stated deadlines of the inmate grievance program, and, furthermore, (c) the institution has not yet rendered a final decision on the inmate-plaintiff's grievance. The implicit concern, of course, is that CORC could indefinitely delay an inmate-plaintiff's access to federal court by indefinitely withholding decision on his appeal.
Also as previously discussed, the vast majority of courts in this circuit addressing these particular circumstances have concluded that CORC's failure to timely respond means that an inmate-plaintiff's administrative remedies have not been exhausted, even if he has fully complied with the requirements of the inmate grievance program. On that point, the Defendants are correct that their failure to inform this Court of CORC's decision does not change the outcome. But had the Court been timely informed that CORC had rendered a decision, it is likely that the Court would have altered its analysis and could have reached a more efficient resolution of the motion. Indeed, the Court's ruling that " if no CORC decision is rendered within 30 days from the date of this Order, Plaintiff may re-file his complaint with this Court, which will re-open the case and, upon reopening, will 'deem administrative remedies to be unavailable such that [Plaintiff] may proceed with his claim'" was moot at the time the ruling was issued. Dkt. No. 28 at 6.
Nonetheless, the Court agrees with the Defendants that the overwhelming weight of authority in this Circuit holds that, however inefficient it may be, the proper course remains a dismissal of Plaintiff's claims without prejudice. See, e.g., Mateo v. Alexander, No. 08 Civ. 8797 (RJH) (DCF), at *8-13 (S.D.N.Y. Feb. 9, 2010) (" [T]he Court of Appeals has ruled that from the broader perspective of Congress and appellate judges, the greater good forbids allowing a case to proceed where administrative remedies have been exhausted while the complaint is pending, and requires in such a case dismissal of the complaint, to be re-filed, if the plaintiff wishes, with the addition of paragraphs explaining how administrative remedies have been exhausted." (quoting Mendez v. Artuz, No. 01-4157, at *4-5 (S.D.N.Y. Feb. 27, 2002) (Lynch, J.)) (internal quotation marks omitted). Therefore, the Court will not relieve Plaintiff of the Court's prior Order dated September 25, 2014. The Court does note, however, that in light of CORC's decision, Plaintiff may immediately re-file his complaint in this Court.
For the reasons stated herein, the Court will not relieve Plaintiff of its prior Order pursuant to Rule 60(b)(6). However, the Court notes that in light of CORC's decision in March 2014, the second part of its holding regarding the time period for Plaintiff to re-file his complaint was moot at the time the Memorandum and Order was issued. See Dkt. No. 28 at 6 (" The Court further holds that if no CORC decision is rendered within 30 days from the date of this Order, Plaintiff may re-file his complaint with this Court, which will re-open the case, and upon reopening, will 'deem administrative remedies to be unavailable such that [Plaintiff] may proceed with his claim.'" (quoting Torres v. Carry, 672 F.Supp.2d 338, 345-46 (S.D.N.Y. 2009)). For the sake of clarity, Plaintiff may immediately re-file his complaint in this Court.