Opinion

BARBARA JONES, District Judge

Plaintiff George Arce, an incarcerated inmate, brings this action against Defendants pursuant to 42 U.S.C. § 1983. After the appointment of counsel, Plaintiff filed an amended complaint on July 12, 2002. Defendants move to dismiss the amended complaint on the grounds that (1) Plaintiff failed to exhaust his administrative remedies; (2) Plaintiff's Amended Complaint fails to state a claim; and (3) they are entitled to qualified immunity. For the reasons explained below, the Court finds that Plaintiff has failed to exhaust his administrative remedies and GRANTS Defendants' motion to dismiss.

BACKGROUND

On January 5, 1998, a medical review of Plaintiff was conducted. The doctor who evaluated Plaintiff concluded that Plaintiff should be placed in a single cube beside a window and, if placed in a cell, Plaintiff should be housed only with a non-smoker. (Compl. ¶ 24). The doctor's instructions notwithstanding, Plaintiff was not given alternate housing accommodations, and his asthma attacks continued through March of 1998.

On January 13, 1998, Plaintiff spoke to Defendants Keane and Krom and asked them to transfer him to a non-smoking cell. (Compl. ¶¶ 26-27). Plaintiff's requests were refused. One week later, on January 20, 1998, after complaining to Defendant Miller, Plaintiff wets moved to another dormitory, which was occupied by more smokers than the previous dormitory in which he had been housed. (Compl. ¶ 28, 30). Plaintiff contends that this move was made in retaliation for his complaints regarding his housing accommodations.

After his transfer to the second dormitory, Plaintiff submitted a "Housing Style Change Request Form" requesting a change of his housing location. (Compl. ¶ 32). Plaintiff received the following written response: "Your [sic] already on the single cell list, save the paper and time." (Compl. ¶ 33).

After several additional attempts to speak to Defendants Keane and Miller about his housing accommodations, Plaintiff filed a grievance with the Inmate Grievance Relations Committee ("IRGC") on March 20, 1998 ("First Grievance"). (Compl. ¶ 36). It is unclear from Plaintiff's papers whether he ever received a formal response from the IRGC. For the purposes of this motion, the Court will assume that he did not.

Plaintiff did subsequently receive several written responses from Woodbourne indicating that his requests were denied and that Plaintiff had failed to submit a written request for a change of accommodation. (Compl. ¶ 39, 41). "The response Plaintiff received from Defendant Miller, dated March 24, 1998, "indicat[ed] [Miller] would not consider Arce's requests for a housing change, claiming the prison had no responsibility in the matter. [The request also stated] `Be advised that cell mate smoking and compatibility issues are regulated by law; therefore, your request for special provisions is not necessary and need not be addressed." (Compl. ¶ 42).

On April 17, 1998, Plaintiff filed a second grievance regarding his exposure to secondhand smoke and his asthma ("Second Grievance"). (Compl. ¶ 46). Plaintiff received no response to this grievance from the IRGC. Plaintiff was transferred out of Woodbourne on May 18, 1998 and commenced this action on March 28, 2001. (Compl. ¶ 49).

DISCUSSION

The Prison Litigation Reform Act (" PLRA") requires a plaintiff to exhaust all available administrative remedies before filing a complaint in federal court. See 42 U.S.C. § 1997e(a) ("No action shall be brought with respect to prison conditions under section 1979 of the Revised Statutes of the United States ( 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.") The New York State Department of Correctional Services ("DOCS") has established a three-step grievance process for all prisoner complaints.See N.Y. Comp. Codes R. Regs, tit. 7, § 701.7. First, an inmate must file a grievance with the IRGC, which is composed of fellow inmates and various prison officials. See id. § 701.7(a). Second, if the inmate is dissatisfied with the IGRC decision, he must appeal to the superintendent of the facility. See id. § 701.7(b). Third, if the inmate does not receive a favorable decision from the superintendent, he must appeal to the DOCS Central Office Review Committee ("CORC"). See id. § 701.7(c). After the inmate completes his appeal to the CORC, the grievance process is then complete and the inmate, if still dissatisfied, may bring a complaint in the appropriate court. See Hemphill v. New York, 198 F. Supp.2d 546, 548 (S.D.N.Y. 2002). "A prisoner has not exhausted his administrative remedies until he goes through all three levels of the grievance procedure." Id.

There is no dispute that the PLRA's exhaustion requirement "applies to all inmate suits about prison life." Porter v. Nussle, 534 U.S. 516, 532 (2002). Here, Plaintiff failed to exhaust his administrative remedies because, although he filed two formal written grievances, he failed to appeal the denial or lack of response to those grievances to the superintendent of the facility. An inmate's failure to appeal a grievance is not excused because he has received no response to his initial grievance.

Among other reasons, Congress enacted § 1997e(a) to give prison officials an opportunity to take corrective actions that might obviate the need for litigation and to assure that adjudication by federal courts would be facilitated by an -administrative record that clarifies the contours of a controversy. See Porter, 534 U.S. at 524-25; Booth v. Churner, 532 U.S. 731, 737 (2001). Allowing an inmate to opt out of New York's grievance scheme without filing even one appeal and before receiving any response from prison authorities would undermine these goals. New York's legislature, recognizing that some grievances will not be answered within seven days, gave prisoners the right to bring their grievances to the attention of the Superintendent even in the absence of an adverse response from the IGRC. See N.Y. Comp. Codes R. Regs., tit. 7, § 701.8. It is unreasonable to read these regulations as providing that a federal action is the next and only recourse when the prison fails to respond to an initial grievance.

Nonetheless, Plaintiff maintains that his claims should not be dismissed because they fall within a narrow exception that allows an incarcerated plaintiff to maintain an action "even when the requirements of all administrative remedies have not technically been exhausted." (Pl. Mem. at 10).

Two exceptions to the PLRA's exhaustion requirement were articulated inO'Connor v. Featherstone, 2002 WL 818085 (S.D.N.Y. April 29, 2002), two months after the Supreme Court reiterated the exhaustion requirement in Porter v. Nussle. O'Connor held that an inmate may defeat a motion to dismiss even when administrative remedies have not technically been exhausted if (1) the inmate was led to believe by prison officials that his alleged incident was not a "grievance matter" and assured that his claims were otherwise investigated; or (2) the inmate makes a "reasonable attempt" to exhaust his administrative remedies, especially where it is alleged that corrections officers failed to file the inmate's grievances or otherwise impeded or prevented his efforts.O'Connor, 2002 WL 818085, at *2. Even assuming that these are valid exceptions to the exhaustion requirement, Plaintiff's arguments are unavailing.

Here, Plaintiff does not allege that corrections officers impeded or prevented his efforts to follow the grievance procedure. Rather he argues that his two formal grievances and numerous letters evidence "substantial and repeated efforts to obtain a remedy under DOCS' procedures," and because Defendants instructed Plaintiff to "save the paper and time" and told him that his requests "[are] not necessary and need not be addressed," the remedies contemplated by the PLRA "were not `available' under the meaning of the PLRA." (Pl. Mem. at 13-14).

The Court reads Plaintiff's argument as two-fold: First, that Plaintiff's efforts — including his informal letters, oral conversations, and two formal grievances — constitute a "reasonable attempt" to exhaust his administrative remedies; and second, that Defendants' comments that Plaintiff should "save the paper and time" and that Plaintiff's requests "[are] not necessary and need not be addressed" led Plaintiff to believe that his alleged incident was not a "grievance matter" and/or that his complaints were being investigated. Neither argument is convincing.

It is well established that writing letters to prison officials is insufficient to exhaust administrative remedies. E.g.,Mills v. Garvin, 2001 WL 286784 at *3 (S.D.N.Y. Mar. 2, 2001) ("letter writing is not the equivalent of an exhaustion of administrative remedies under the PLRA"). Therefore, Plaintiff's letters and conversations with Defendants are not relevant in determining whether he exhausted his administrative remedies. Moreover, Plaintiff could not have reasonably believed that Defendants' statements indicated that he need not follow the three-step grievance procedure. The comment that Plaintiff was already on the list to be transferred to a single cell and that he should "save the paper and the time" — i.e., stop sending written complaints — was made in response to Plaintiff's "Housing Style Change Request Form" and, therefore, Plaintiff could not reasonably believe that he was being instructed not to file a grievance. Furthermore, this comment was madebefore Plaintiff filed his First Grievance. Plaintiff could not have reasonably believed that a comment made before he filed his First Grievance justified his failure to appeal that grievance when he received no response.

The second comment, that Plaintiff's requests " [are] not necessary and need not be addressed," was made after Plaintiff filed his First Grievance. However, in his Memorandum of Law, Plaintiff described this comment as being made in a document that "indicat[ed] [Miller] would not consider Arce's requests for a housing change, claiming the prison had no responsibility in the matter." (Pl. Mem. at 7). Such a comment cannot be read as preventing or obstructing Plaintiff from filing a grievance or appealing the denial of a grievance. Cf. Thomas v. N.Y. State Dep't of Corr. Servs., 2003 U.S. Dist. LEXIS 20286, at *13 (S.D.N.Y. Nov. 10, 2003) (dismissing plaintiff's claims for failure to exhaust even though two prison officials told plaintiff he need not file a grievance; "while [plaintiff] was told that it was not necessary for him to file a grievance, there is no evidence that, he was told that he could not file a grievance. Thus, the instructions are properly understood as bad advice, not prevention or obstruction."). Indeed, Plaintiff does not appear to have relied upon Miller's comment, as he filed a second grievance with the IGRC after receiving Miller's March 24, 1998 response. In any event, the Court finds that the types of representations made in this case by prison officials outside of the grievance process do not warrant an exception to the exhaustion requirement. Such an exception is at odds with the Congressional goals of reducing the quantity and improving the quality of prisoner suits by affording corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.Porter, 534 U.S. at 524-525.

Finally, Plaintiff argues that an appeal to Defendant Keane was not an "available" administrative remedy, as contemplated by the PLRA, because Keane had refused his previous informal requests and because, in a letter to Plaintiff's counsel dated March 23, 1998, Defendant Keane had denied ever receiving a written request from Arce to be transferred to a non-smoking cell. (Def. Mem. at 13). Plaintiff's argument is unclear, but presumably he is arguing that, in light of Defendant Keane's previous refusals and allegedly false statement that he had not received any written requests from Plaintiff to change his housing accommodations, an appeal to Defendant Keane would have been fufile. However, futility will not excuse an inmate's failure to exhaust his administrative remedies.Cf. Porter, 534 U.S. at 524 ("Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit."). In any event, even assuming that Defendant Keane would have denied Plaintiff's appeal, Plaintiff still could have obtained relief from the CORC, which would have "afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case." Id. at 525.

CONCLUSION

The Clerk of the Court is directed to close this case.

SO ORDERED.