United States District Court, W.D. New York
ANDRE A. JOHNSON, Plaintiff,
CARL J. KOENIGSMANN, et al., Defendants.
DECISION AND ORDER
CHARLES J. SIRAGUSA UNITED STATES DISTRICT JUDGE.
prisoner civil rights case is before the Court on
Defendants' motion for summary judgment. Motion for
Summary Judgment, Nov. 21, 2016, ECF No. 10. The defense
included an Irby notice in its motion papers. ECF No.
10-2. On October 27, 2016, Plaintiff filed a change of
address indicating his move to Wyoming Correctional Facility.
On November 22, 2016, the Court issued a motion scheduling
order directing Plaintiff to file any response by December
20, 2016. ECF No. 11. That order was served on Plaintiff at
Wyoming Correctional Facility by U.S. mail. To date,
Plaintiff has not responded to the motion.
move on two grounds, only one of which is addressed
here. Defendants contend that Plaintiff failed
to exhaust his administrative remedies prior to filing suit.
Exhaustion is required with exceptions only in rare
circumstances which are not applicable here. 42 U.S.C. §
1997e(a); Ross v. Blake, 136 S.Ct. 1850 (2016). The
exhibits filed by Defendants show that although Plaintiff
grieved the matters underlying this lawsuit, he did not
follow through with the appeals process prior to filing suit.
To satisfy the exhaustion requirement,
prisoners in New York must ordinarily follow a three-step
grievance process. The first step in that process is the
filing of a grievance with the Inmate Grievance Resolution
Committee. Next, the inmate may appeal an adverse decision to
the prison superintendent. Finally, the inmate may appeal the
superintendent's decision to the Central Office Review
Committee (“CORC”). Brownell v. Krom,
446 F.3d 305, 309 (2d Cir.2006). In general, it is only upon
completion of all three levels of review that a prisoner may
seek relief in federal court under § 1983. Neal v.
Goord, 267 F.3d 116, 121 (2d Cir. 2001), overruled
on other grounds by Porter v. Nussle, 534 U.S. 516, 122
S.Ct. 983, 152 L.Ed.2d 12 (2002); Campos v. Correction
Officer Smith, 418 F.Supp.2d 277, 278 (W.D.N.Y. 2006).
Crenshaw v. Syed, 686 F.Supp.2d 234, 236 (W.D.N.Y.
motion for summary judgment in lieu of answer is appropriate
in a case such as this. See Anderson v. Rochester-Genesee
Regional Transp. Authority, 337 F.3d 201, 202 (2d Cir.
2003) (“defendants moved for summary judgment in lieu
of answering the complaint”); see also Omaro v.
Annucci, 68 F.Supp.3d 359, 362 (W.D.N.Y. 2014) (granting
summary judgment in lieu of an answer on a failure to exhaust
judgment may not be granted unless ''the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, …
demonstrate the absence of a genuine issue of material fact,
” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986), and “the movant is entitled to judgment as a
matter of law, ” Fed.R.Civ.P. 56(a) (2015). “In
moving for summary judgment against a party who will bear the
ultimate burden of proof at trial, the movant may satisfy
this burden by pointing to an absence of evidence to support
an essential element of the nonmoving party's
claim.'' Gummo v. Village of Depew, 75 F.3d
98, 107 (2d Cir. 1996) (citation omitted).
burden then shifts to the non-moving party to demonstrate
specific facts showing that there is a genuine issue for
trial. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986). To do this, the non-moving party must
present evidence sufficient to support a jury verdict in its
favor. Id. at 249. A[F]actual issues created solely
by an affidavit crafted to oppose a summary judgment motion
are not 'genuine' issues for trial.''
Hayes v. N.Y. City Dep't of Corr., 84 F.3d 614,
619 (2d Cir. 1996). Summary judgment is appropriate only
where, ''after drawing all reasonable inferences in
favor of the party against whom summary judgment is sought,
no reasonable trier of fact could find in favor of the
non-moving party.'' Leon v. Murphy, 988 F.2d
303, 308 (2d Cir. 1993). The parties may only carry their
respective burdens by producing evidentiary proof in
admissible form. Fed.R.Civ.P. 56(c)(1). The underlying facts
contained in affidavits, attached exhibits, and depositions,
must be viewed in the light most favorable to the non-moving
party. United States v. Diebold, Inc., 369 U.S. 654,
Court's local rule permits it to adopt an undisputed
statement of facts filed by the moving party. Here,
Defendants' statement of facts has not been disputed, and
the Court adopts it in total. W.D.N.Y. Loc. R. Civ. P.
56(a)(2). The facts deemed admitted show that Plaintiff
failed to comply with the Prison Litigation Reform Act's
exhaustion requirement, § 1997e(a). Nothing before the
Court shows that administrative remedies were not available
in this case. Consequently, Plaintiff was required to utilize
those remedies prior to bringing suit. Ross, 136
S.Ct. at 1862. Neal v. Goord, 267 F.3d 116, 117-18
(2d Cir. 2001) (“We hold in this case for the first
time that where exhaustion is required, failure to do so must
result in dismissal, notwithstanding efforts by the
inmate-plaintiff to pursue administrative remedies while
simultaneously seeking relief in federal court.”);
see also Porter v. Nussle, 534 U.S. 516, 532 (2002)
(“we hold 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
motion for summary judgment, ECF No. 10, is granted. The
complaint is dismissed without prejudice due to
Plaintiff's failure to comply with the exhaustion
requirement in 42 U.S.C. § 1997e(a). The Clerk is
directed to enter judgment and close this case.
 Irby v. New York City Transit
Authority, 262 F.3d 412 (2d Cir. 2001).
 Because the Court finds that Plaintiff
failed to exhaust administrative remedies and dismisses the
complaint on that basis, the Court need not address the ...