MEMORANDUM AND ORDER

LORETTA PRESKA, District Judge

Plaintiff Nathaniel Sims ("plaintiff" or "Sims") brings this action against defendants Correction Officer Mike J. Blot ("Blot") and Correction Officer Francisco Caraballo ("Caraballo") (collectively, the "defendants") under § 1983 for damages arising out of an incident on December 20, 1999. Defendants moved for summary judgment on the grounds that Sims has not satisfied the exhaustion requirement of the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). For the reasons stated below, defendants' motion is granted.

BACKGROUND

Plaintiff alleges the following. On December 20, 1999, plaintiff was assaulted without provocation by defendants. (Plaintiff's Memo of Law in Opposition to Defendants' Motion for Summary Judgment, hereafter "Pl's Opp.," at 3). Immediately after that assault, plaintiff was placed in the Psychiatric Satellite Unit ("PSU") at the Sing Sing Correctional Facility ("Sing Sing"). (Id.). He was housed in the PSU until or about January 18, 2000. (Id.). For the first few weeks of his stay in the PSU, plaintiff did not have access to writing materials and thus could not submit a grievance concerning the December 20, 1999 incident. (Id.).

On or about January 14, 2000, plaintiff obtained pen and paper and filed a grievance, dated January 14, 2000, regarding the December 20, 1999 incident. (Pl's Opp. at 3). The grievance was received and docketed by the Inmate Grievance Resolution Committee ("IGRC") on January 20, 2000. (Id.). Plaintiff's grievance states, "On 12/20/99 at approximately 12:30 pm I was assaulted and cut with a pocket knife by Correctional Officers in HBC. Officers were: M. Blot, F. Caraballo [and others]." (Id.).

Shortly before February 15, 2000, plaintiff followed up on his grievance by asking Sergeant Fields, who was in charge of grievances at Sing Sing, about the status of his grievance. (Id.). Sergeant Fields informed plaintiff that his grievance had been sent directly to Superintendent Charles Greiner. (Id.) However, Sergeant Fields would not tell plaintiff if or when he would receive a response. (Id. at 4).

Because over one month had passed since plaintiff mailed his grievance, and he had not received any response, plaintiff "believed that [he] would never receive a response." (Pl's Opp. at 4). Plaintiff "believed that [he] had filly exhausted any administrative procedures provided to [him] by the Department of Corrections by filing a grievance and not receiving a response for a month." (Id.). As a result, plaintiff "believed that the only course available" was "to file [a] lawsuit in federal court." (Id.).

On February 15, 2000, plaintiff filed the instant Complaint (the "Compl." or "Complaint"). In that Complaint, plaintiff alleged that defendants, while conducting a strip search of him on December 20, 1999, assaulted and used excessive force on him in violation of his civil rights. (Compl. at IV). With respect to his efforts to exhaust available administrative remedies, plaintiff alleged that he grieved the incident, that he was verbally told that his grievance was sent to the Superintendent of the facility, but that he had yet to receive a reply. (Id. at II.C.2, V-A).

On February 23, 2000, subsequent to having filed the instant action, plaintiff was transferred out of Sing Sing to the Auburn Correctional Facility. By letter dated February 24, 2000, plaintiff was informed that his grievance had been denied. (Ex. C to the Declaration of Nathaniel Sims, hereafter, the "Sims Decl."). According to plaintiff, because he did not receive that letter before filing the instant Complaint, he "had nothing to appeal to the Central Office Review Committee ("CORC") ." (Sims Decl. ¶ 7).

On March 6, 2002, defendants filed a motion for summary judgment, which is now before this Court. In their motion, defendants assert that plaintiff, by failing to appeal his grievance to the CORC, is in non-compliance with the PLRA, which requires that a prisoner exhaust all available administrative remedies before seeking redress in federal court.

DISCUSSION

I. Summary Judgment Standard

Under Rule 56, summary judgment shall be rendered if the pleadings, depositions, answers, interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.Proc. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986). An issue of fact is genuine when "a reasonable jury could return a verdict for the nonmoving party," and facts are material to the outcome of the litigation if application of the relevant substantive law requires their determination.Anderson, 477 U.S. at 248.

The moving party has the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

The substantive law determines the facts which are material to the outcome of a particular litigation. Anderson, 477 U.S. at 250; Heyman v. Commerce Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975). In determining whether summary judgment is appropriate, a court must resolve all ambiguities, and draw all reasonable inferences against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

If the moving party meets its burden, the burden then shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.Proc. 56(e). The non-moving party must "do more than simply show there is some metaphysical doubt as to the material facts."Matsushita, 475 U.S. at 586. Only when it is apparent, however, that no rational finder of fact "could find in favor of the non-moving party because the evidence to support its case is so slight" should summary judgment be granted. Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994).

II. Exhaustion Under the PLRA

The Prisoner Litigation Reform Act (the "PLRA") provides, in pertinent part, that

No action shall be brought with respect to prison conditions under section 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.

Here, the record clearly demonstrates that the New York Department of Correctional Services ("DOCS") grievance procedures at Sing Sing, as with all New York State correctional facilities, allow inmates to file internal grievances on practically any issue affecting their confinement. DOCS provides inmates with a three-tiered Inmate Grievance Program by which to pursue administrative remedies for, inter alia, violations of their civil rights. See N.Y. Comp. Code R. Regs. tit. 7, § 701.1 et seq. (2001). First, the inmate must file a complaint with the Inmate Grievance Resolution Committee ("IGRC") within fourteen days of the alleged occurrence. Id. at § 701.7(a) (1). The IGRC must then investigate and resolve the complaint informally or following a hearing to be held within seven days.Id. at § 701.7(a)(3). Second, the inmate may then appeal the IGRC's decision to the Superintendent of the facility within four days of receiving the decision. Id. at § 701.7(a)(4), (b). Third, the inmate may appeal to the Central Office Review Committee ("CORC") within four days of receipt of the Superintendent's decision. The CORC, in turn, must render a decision within twenty days. Id. at § 701.7(c)(4).

Notably, the regulations provide that even if no response is received by an inmate to his grievance within the allotted time period, he may then appeal that grievance (and the absence of a decision thereon) to the next step in the grievance process.See N.Y. Comp. Code R. Regs. tit. 7, § 701.8. ("Absent [an] extension, matters not decided within the time limits may be appealed to the next step.").

Indeed, in Petty v. Goord, 00 Civ. 803, 2002 U.S. Dist. LEXIS 21197 (S.D.N.Y. Nov. 4, 2002), Judge Mukasey addressed a similar scenario. In Petty, the plaintiff filed a grievance within the prescribed time period. Id. at *12. However, he did not file an appeal of that grievance because he never received a response to his initial complaint. Id. Judge Mukasey, citing § 701.8, supra, held that plaintiff "had the opportunity to appeal to the Superintendent . . . but failed to do so." Id. at 12-13. Judge Mukasey therefore barred the action for failure to exhaust administrative remedies because "[t]he statute states that `such administrative remedies as are available' must be exhausted" and "an appeal to the Superintendent was available to [plaintiff]." Id. at *13. The instant case is no different. Plaintiff here, too, asserts that when he was not provided with a decision to appeal, or told how to do so, his available administrative remedies were exhausted. (Pl's Opp. at 10). Although those responsible for evaluating plaintiff's grievance were, it appears, inexcusably lax in addressing plaintiff's grievance, plaintiff here had the same administrative remedies available to him as the plaintiff had in Petty, viz., an appeal to the Superintendent, then to the CORC. Absent a final appeal to the CORC, plaintiff cannot be said to have exhausted all available administrative remedies.

Plaintiff also contends that once he was transferred to another prison, all available administrative remedies became exhausted. (Pl's Opp. at 12). The fact that plaintiff was moved from Sing Sing to the Auburn Correctional Facility does not, however, relieve him of the obligation to exhaust his administrative remedies in the facility where the incident occurred. See Thomas v. Henry, 02 Civ. 2584, 2002 U.S. Dist. LEXIS 8086, at *3-4 (S.D.N.Y. May 7, 2002) (action dismissed for failure to exhaust administrative remedies, even though plaintiff was moved from a City prison to a State facility);see also Santiago v. Meinsen, 89 F. Supp.2d 435, 440-41 (S.D.N.Y. 2000) (plaintiff should not be "rewarded" for failing to participate in grievance procedure before being transferred). To the extent plaintiff's argument can be construed as a futility argument, it is well established that the exhaustion requirement does not disappear merely because a prisoner deems the administrative remedies "futile." See Berry v. City of New York, 00 Civ. 2834, 2002 U.S. Dist. LEXIS 10520, at *21 (S.D.N.Y. June 11, 2002) (exhaustion requirement cannot be waived due to plaintiff's belief that pursuing administrative remedies would be ineffective or futile); see also Giano v. Goord, 250 F.3d 146, 150-51 (2d Cir. 2001) (noting that "the alleged ineffectiveness of the administrative remedies that are available does not absolve a prisoner of his obligation to exhaust such remedies").

Lastly, plaintiff asserts that requiring him to exhaust his administrative remedies would be "pointless." (Pl's Opp. at 14). According to plaintiff, if this action is dismissed, he would then pursue the full administrative remedy process and would then, in all likelihood, re-file the instant lawsuit "and the parties would pick up where we left off." (Id.). Plaintiff's argument is essentially that forcing him to exhaust his administrative remedies at this advanced stage in the litigation would be a needless exercise. Nevertheless, it is a formality that the Supreme Court, in no uncertain terms, has declared is required in order for an inmate to pursue an action under § 1983. See, e.g., Porter, 534 U.S. at 524-25; Booth v. Churner, 532 U.S. 731, 736-37 (2001). Accordingly, plaintiff's claims must be dismissed for failure to exhaust administrative remedies.

When an action is dismissed pursuant to the PLRA for failure to exhaust administrative remedies, such dismissal shall be without prejudice. See Townsend v. Armstrong, No. 02-0175, 2003 U.S. App. LEXIS 11356, at *3 (2d Cir. June 5, 2003) (citingMorales v. Mackalm, 278 F.3d 126, 131 (2d Cir. 2002) (per curiam)).

CONCLUSION

For the foregoing reasons, defendants' motion (docket entry no. 50) is granted. Plaintiff's action is dismissed without prejudice to renewal upon proper exhaustion of all available administrative remedies.

SO ORDERED.