REPORT AND RECOMMENDATION

GABRIEL GORENSTEIN, Magistrate Judge

BACKGROUND

Steven Wayne Arnold, formerly an inmate at Mid-Orange Correctional Facility, brings this action pursuant to 42 U.S.C. § 1983 asserting three claims under the Eighth Amendment: (1) that certain defendants failed to protect Arnold from an assault by another inmate despite Arnold's repeated requests to be transferred; (2) that defendants "John Doe" and/or "Richard Doe" were deliberately indifferent to Arnold's medical needs when they wrongfully placed a surgical screw into one of Arnold's teeth, fracturing the tooth as a result; and (3) that defendants "John Doe" and/or "Richard Doe" were deliberately indifferent to Arnold's medical needs when they ignored Arnold's repeated complaints of pain and failed to diagnose an ongoing infection. See Complaint, filed March 13, 2001. Arnold also included a claim under the New York State Human Rights Law, N.Y. Exec. Law §§ 290-301. Complaint ¶¶ 43-48. The defendants' motion to dismiss in this matter was filed on May 14, 2001 and was fully briefed as of August 18, 2001.

On September 3, 2003, Judge Daniels issued an Order of Reference seeking a Report and Recommendation from the undersigned as to the motion to dismiss. Because the Supreme Court had decided certain controlling cases relating to the defendants' motion following the completion of briefing, the undersigned issued an order on September 16, 2003 permitting additional briefing by the parties. The defendants submitted a supplemental memorandum of law on October 9, 2003. Arnold did not submit any opposition.

DISCUSSION Section 1983 Claim

The defendants moved to dismiss pursuant to Fed.R.Civ.P. 12(b) due to lack of subject matter jurisdiction and failure to state a claim. Both arguments were premised on the same undisputed fact: that Arnold had not exhausted any of his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e. Under this statute, "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."

New York State's exhaustion requirement is set forth in 7 N. Y.C.R.R. § 701. It permits an inmate to file a grievance regarding prison conditions and allows for an appeal to the Superintendent of the facility and then to a Central Office Review Committee. 7 N.Y.C.R.R. § 701.7. In New York, a "prisoner has not exhausted his administrative remedies until he goes through all three levels of the grievance procedure."Hemphill v. New York, 198 F. Supp.2d 546, 548 (S.D.N.Y. 2002);accord Sulton v. Wright, 265 F. Supp.2d 292, 296 (S.D.N.Y. 2003) (inmates must "exhaust all administrative remedies, at all levels of appeal, in order for their claims to survive a motion to dismiss" (internal quotations omitted)); Rivera v. Goord, 253 F. Supp.2d 735, 746 (S.D.N.Y. 2003).

In response to the original motion to dismiss, Arnold did not contend he had complied with any of these steps. Instead, he argued that the PLRA did not require exhaustion in cases involving particularized instances of misconduct, in reliance on the Second Circuit's decisions in Nussle v. Willette, 224 F.3d 95 (2d Cir. 2000), and Lawrence v. Goord, 238 F.3d 182 (2d Cir. 2001). See Plaintiffs Memorandum of Law in Opposition to Defendants' Motion to Dismiss the Complaint, filed August 7, 2001 ("Pl. Mem."), at 6-7. Since that time, however, the Supreme Court has reversed Nussle, Porter v. Nussle, 534 U.S. 516 (2002), and vacated Lawrence,Goord v. Lawrence, 535 U.S. 901 (2002), making it clear 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."Porter, 534 at 532.

Arnold also argued that the grievance process could not afford him any meaningful relief because he is no longer confined in the facility where these events allegedly took place and he eventually received medical care for the injuries in question. Pl. Mem. at 9-10. But the Supreme Court has since made clear that futility is not a basis for a court to excuse a plaintiffs failure to exhaust. See Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001) ("we will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise"); accord Porter, 534 U.S. at 524 ("All 'available' remedies must now be exhausted; those remedies need not meet federal standards, nor must they be 'plain, speedy, and effective.'" (citation omitted)). In addition, the exhaustion requirement applies even when a plaintiff seeks relief not available in prison administrative proceedings, such as monetary damages. Booth, 532 U.S. at 740-41.

Finally, Arnold argued that the proceedings should be stayed to allow him to exhaust in accordance with the PLRA. PI. Mem. at 10-11. But inNeal v. Goord, 267 F.3d 116 (2d Cir. 2001), the Second Circuit held that courts do not have discretion to stay an action pending an inmate's exhaustion of his administrative remedies, reasoning that doing so would "undermine Congress' directive to pursue administrative remedies prior to filing a complaint in federal court."Id. at 122-23 (emphasis added).

Because of the inability to exhaust at this point due to the time limitations contained in New York's exhaustion scheme, see 7 N.Y.C.R.R. § 701.7, the dismissal should be with prejudice.See, e.g., Cole v. Miraflor, 2003 WL 21710760, at *3 (S.D.N.Y. July 23, 2003) (dismissing complaint with prejudice because plaintiff "is unable to cure the failure to exhaust");Taylor v. Bermudez, 2003 WL 21664673, at *4 (S.D.N.Y. July 16, 2003) (observing, in the context of a motion to dismiss, that "[w]hile dismissal without prejudice . . . would ordinarily be appropriate in order to permit the prisoner to request relief from the untimeliness of his grievance, in this case dismissal with prejudice is appropriate because any further attempt by plaintiff to exhaust his administrative remedies would be futile" (citations omitted)); Byas v. New York, 2002 WL 1586963, at *3 n. 5 (S.D.N.Y. July 17, 2002) (same). State Law Claim

Arnold also pled a claim under the New York State Human Rights Law, N.Y. Exec. Law §§ 290-301. Complaint ¶¶ 43-48. Federal courts have "supplemental jurisdiction" over such claims if they are "so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article HI." 28 U.S.C. § 1367(a). Nonetheless, a district court should normally decline to exercise supplemental jurisdiction when "the district court has dismissed all claims over which it has original jurisdiction." Id. § 1367(c); accord United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); In re Merrill Lynch Ltd. P'ships Litig., 154 F.3d 56, 61 (2d Cir. 1998): Lennon v. Miller, 66 F.3d 416, 426 (2d Cir. 1995). Here, the section 1983 claims provided the only basis for federal jurisdiction. Thus, the Court should decline to exercise supplemental jurisdiction over Arnold's state law claim.

Conclusion

The complaint should be dismissed with prejudice.

PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Honorable George B. Daniels, 40 Centre Street, New York, New York 10007, and to the undersigned at the same address. Any request for an extension of time to file objections must be directed to Judge Daniels. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Am, 474 U.S. 140 (1985).