WILLIAM H. PAULEY III, District Judge

MEMORANDUM & ORDER

:

Plaintiff pro se Andre A. Johnson brings this federal civil rights action against New York City prison officials, alleging various Eighth Amendment violations including improper strip searches and deprivation of food, medical care, and other services. Defendants move to dismiss the second amended complaint under Rule 12(b)(6) for failure to exhaust administrative remedies. For the following reasons, Defendants' motion is granted.

BACKGROUND

Johnson is an inmate at Ulster Correctional Facility. He was previously incarcerated at the Otis Bantum Correctional Center. For several days between June 7 and September 17, 2012, Johnson alleges that Otis Bantum officials instituted "tactical shutdown operations" called "Peter Pays for Paul." (Second Amended Complaint, dated February 13, 2013 ("Am. Compl.") at 2, 4.) During these operations, the facility suspended many of its services, including medical services, legal and personal visits, mail, phone calls, food, and access to the law library. (Am. Compl. at 6.) Johnson was forced to miss two court appearances as a result of the shutdown operations. (Am. Compl. at 5.) Additionally, for 27 days during this time, Johnson alleges that he was ordered to undergo strip searches in front of female officers. (Am. Compl. at 6-7.) Thereafter, Johnson filed an initial grievance at Otis Bantum. (Am. Compl. at 8.) He also filed complaints with the Warden of Otis Bantum and Commissioner Schriro. (Am. Compl. at 7, 8.) Johnson alleges that he never received a response to any of his grievances. (Am. Compl. at 8.)

DISCUSSION

I. Legal Standard

The factual allegations of a complaint are accepted as true and all reasonable inferences are drawn in the plaintiff's favor on a motion to dismiss under Rule 12(b)(6). ECA Local 134 IBEW Joint Pension Trust Fund of Chi. v. JP Morgan Chase Co., 553 F.3d 187, 196 (2d Cir. 2009); Teamsters Local 445 Freight Div. Pension Fund v. Dynex Capital Inc., 531 F.3d 190, 194 (2d Cir. 2008). "When the complaint involves a civil rights violation, as it does here, the standard is to be applied with particular strictness." Matson v. Bd. of Educ. of City Sch. Dist. of N.Y., 631 F.3d 57, 63 (2d Cir. 2011) (citation omitted). To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted); Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010). A claim cannot be grounded on mere suspicion but must rest on "factual allegations sufficient to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557). In determining the adequacy of a claim under Rule 12(b)(6), a court may consider allegations stated in the complaint, "documents appended to the complaint or incorporated in the complaint by reference, and . . . matters of which judicial notice may be taken." Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991).

A pro se litigant's submissions are held to "less stringent standards than [those] drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Courts "liberally construe pleadings and briefs submitted by pro se litigants, reading such submissions to raise the strongest arguments they suggest." Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007) (internal quotation marks and citation omitted). Nevertheless, this Court need not accept as true "conclusions of law or unwarranted deductions of fact." First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir. 1994).

In certain cases, a Rule 12(b)(6) motion may not be appropriate because a failure to exhaust is not the equivalent of a failure to state a claim. McCoy v. Goord, 255 F. Supp. 2d 233, 249 (S.D.N.Y. 2003). But, if the failure to exhaust is apparent from the face of the complaint, such a motion can be granted. McCoy, 255 F. Supp. 2d at 249.

II. Failure to Exhaust Administrative Remedies

Under the Prison Litigation Reform Act of 1996 ("PLRA"), "[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." 42 U.S.C. § 1997e(a).

Under the PLRA, "[e]xhaustion is no longer left to the discretion of the district court, but is mandatory." Woodford v. Ngo, 548 U.S. 81, 85 (2006). "To be 'available' under the PLRA, a remedy must afford 'the possibility of some relief for the action complained of.'" Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir. 2004) (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)). In making this determination, "courts should be careful to look at the applicable set of grievance procedures." Abney, 380 F.3d at 668 (internal quotation omitted).

The PLRA requires administrative exhaustion, "which means using all steps that the agency holds out, and doing so properly." Woodford, 548 U.S. at 90. In other words, "strict compliance with the grievance procedures is required," McCoy, 255 F. Supp. 2d at 246, "or else dismissal must follow 'inexorably.'" McCoy, 255 F. Supp. 2d at 246 (citing Mendoza v. Goord, No. 00 Civ. 0146 (GEL), 2002 WL 31654855, at *1 (S.D.N.Y. Nov. 21, 2002)). Thus, even if an inmate files a valid grievance, all appeals must be exhausted in order to bring suit in federal court. Porter v. Nussle, 534 U.S. 516, 524-25 (2002) ("Congress enacted § 1997e(a) to reduce the quantity and improve the quality of prisoner suits; to this purpose, Congress afforded correction officials time and opportunity to address complaints internally before allowing the initiation of a federal case."). This means the administrative process must reach a final result. George v. Morrisson, No. 06 Civ. 3188 (SAS), 2007 WL 1686321, at *3 (S.D.N.Y. June 11, 2007). This is so even when an inmate files an initial grievance and does not receive a response. See, e.g., Rivera v. Anna M. Kross Ctr., No. 10 Civ. 8696 (RJH), 2012 WL 383941, at *5 (S.D.N.Y. Feb. 7, 2012); Houston v. Horn, No. 09 Civ. 801 (DLC), 2010 WL 1948612, at *6 (S.D.N.Y. May 13, 2010); Chisholm v. N.Y.C. Dep't of Corr., No. 08 Civ. 8795 (SAS), 2009 WL 2033085, at *2 (S.D.N.Y. Jul. 13, 2009).

To exhaust administrative remedies here, an inmate would need to go through all the steps of the Inmate Grievance Resolution Program ("IGRP"). See Department of Corrections ("DOC") Directive 3375R-A, § IV(B). After submitting an initial grievance form to the Inmate Grievance Resolution Committee ("IGRC"), the IGRC has five days to informally resolve the issue or to review the grievance. See, e.g., Houston, 2010 WL 1948612, at *6. If the IGRC does not reach a decision, does not respond within five days, or if the inmate does not consent to the proposed resolution, the grievant may request a formal hearing in front of the IGRC. Houston, 2010 WL 1948612, at *6. Thus, the burden is on the grievant to seek a hearing if he does not hear a response from the IGRC. See, e.g., Rivera, 2012 WL 383941, at *5. At that point, the IGRC must issue a written decision. Houston, 2010 WL 1948612, at *6. If the grievant is unhappy with it, he may appeal the decision to the commanding officer of the facility or his designee, then to the Central Office Review Committee, and finally to the New York City Board of Correction ("BOC"). Houston, 2010 WL 1948612, at *6. "Only after these steps are followed can an inmate file suit in the district court." Chisholm, 2009 WL 2033085, at *1 (citing Bligen v. Griffen, No. 06 Civ. 4400 (LBS), 2007 WL 430427, at *2 (S.D.N.Y. Feb. 8, 2007)).

"While the PLRA's exhaustion requirement is mandatory, certain caveats apply." Abney, 380 F.3d at 667 (internal citations omitted). Three factors determine exhaustion: (1) whether the administrative remedies were available to the inmate; (2) whether defendants' own actions prevent them from raising the defense of failure to exhaust; and (3) whether special circumstances justify the inmate's failure to comply with procedural requirements. Paese v. Hartford Life Accident Ins. Co., 449 F.3d 435, 445 (2d Cir. 2006).

Here, it is apparent from the face of his Second Amended Complaint that Johnson has failed to exhaust his administrative remedies. While Johnson filed an initial grievance, he failed to request a formal hearing before the IGRC within five days. Johnson also failed to appeal his grievance all the way up to the BOC. See Veloz v. New York, 339 F. Supp. 2d 505, 514 (S.D.N.Y. 2004) ("Complete exhaustion of . . . administrative remedies through the highest level for each claim is required."). Though Johnson filed complaints with the Otis Bantum Warden and Commissioner Schriro, informal complaints to the Commissioner or other prison officials do not satisfy the exhaustion requirement, even when an inmate files an initial grievance. See Adames v. N.Y.C. Dep't of Corrs., No. 07 Civ. 4201(GBD), 2008 WL 2743835, at *2 (S.D.N.Y. July 14, 2008) (filing grievance to warden does not constitute proper exhaustion (citing Macias v. Zenk, 495 F.3d 37, 37 (2d Cir. 2007))); see also Hernandez v. Coffey, No. 99 Civ. 11615 (WHP), 2003 WL 22241431, at *3-4 (S.D.N.Y. Sept. 29, 2003).

The fact that Johnson received no response to either his initial grievance or his complaints to the Warden and Commissioner does not relieve him of his obligation to exhaust his administrative remedies. See, e.g., Rivera, 2012 WL 383941, at *5 (dismissing action because plaintiff failed to exhaust administrative remedies when he did not receive response to initial complaint); Adames, 2008 WL 2743835, at *2; George, 2007 WL 1686321, at *3; Taylor v. N.Y. State Dep't of Corrs., No. 03 Civ. 1929 (PKC), 2004 WL 2979910, at *6 (S.D.N.Y. Dec. 22, 2004).

There are no factors present that would exempt Johnson from the exhaustion requirement. First, there is no indication that remedies were unavailable to him. The test for determining whether a remedy is "unavailable" is "an objective one: that is, would a similarly situated individual of ordinary firmness have deemed them available." Hemphill v. New York, 380 F.3d 680, 688 (2d Cir. 2004) (internal citations omitted). Johnson contends that remedies were unavailable to him because he was "not allowed to appeal" and was informed his grievance "would not be heard" when he inquired as to its status fourteen days after filing. (Am. Compl. at 9; P. Opp'n ¶ 6.) The IGRP requires that inmates request a hearing before the IGRC within five days of filing a grievance; thus at the time Johnson inquired after his grievance, it was already time barred. This is not a case where prison officials prevented Johnson from pursuing additional steps in the grievance process, rather "the applicable procedures expressly contemplate officials' inaction and require prisoners to request a hearing where prison officials have not acted." Rivera, 2012 WL 383941, at *6. While some circuits have held that remedies may be "unavailable" where a grievant files a complaint and receives no response within the time limit, courts within the Second Circuit have declined to adopt this view with respect to the New York City DOC regulations, because they explicitly place the burden on the inmate to seek a hearing when there is no response to an initial grievance. See Marcello v. Dep't of Corrs., No. 07 Civ. 9665 (NRB), 2008 WL 2951917, at *3 (S.D.N.Y. July 30, 2008).

Johnson also fails to allege that any misconduct on the part of the Defendants should estop them from raising his failure to exhaust as an affirmative defense or that any "special circumstances" justify Johnson's failure to comply with procedural requirements. See Hemphill, 380 F.3d at 686; Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004). The Second Circuit has not recognized a failure to respond as a special circumstance excusing the failure to exhaust. See Rivera, 2012 WL 383941, at *7. And Johnson's conclusory allegation that the Defendants did not follow "their own rules and guidelines" under the IGRP is not sufficient to withstand a motion to dismiss. Twombly, 550 U.S. at 555. Because Johnson alleges no mitigating facts to explain his failure to exhaust administrative remedies as required by the PLRA, his complaint is dismissed. See Woodford, 548 U.S. at 90; Hemphill, 380 F.3d at 682.

CONCLUSION

For the foregoing reasons, Defendants' motion to dismiss Johnson's Second Amended Complaint is granted. The Clerk of the Court is directed to terminate all pending motions and mark this case closed. This Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962). Dated: October 15, 2013

New York, New York

SO ORDERED:

/s/_________

WILLIAM H. PAULEY III

U.S.D.J. Copies to: Andre A. Johnson
13-R-2584
Ulster Correctional Facility
B-1-1
P. O. Box 800
Napanoch, NY 12458
Plaintiff Pro Se Jeffrey S. Dantowitz, Esq.
New York City Law Department
100 Church Street
New York, NY 10007
Counsel for Defendants