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holding that the plaintiff's transfer two months after his claim arose did not excuse his failure to exhaust
Summary of this case from Tavares v. N.Y.C. Health & Hosps. Corp.Opinion
99 Civ. 0966 (LMM) (THK)
January 23, 2002
MEMORANDUM OPINION AND ORDER
This Section 1983 prisoner's civil rights action was referred to me for general pretrial supervision. The parties have also consented to have this Court decide dispositive motions, pursuant to 28 U.S.C. § 636(c), rather than provide Reports and Recommendations to the District Judge. (Order, Dec. 20, 2000.)
Plaintiff, Trevor Burns, alleges that he was deprived of his constitutional rights when he was subjected to excessive force used by corrections officers while in the custody of the New York City Department of Correction, on Rikers Island. He also claims he was deprived of medical care for his injuries, both at Rikers Island and upon his subsequent transfer to the custody of the New York State Department of Correctional Services. Defendant Larry Zwillinger has moved to dismiss the Complaint, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure arguing that (1) Plaintiff's claims against him are barred because he has failed to exhaust his administrative remedies, as required by 42 U.S.C. § 1997e(a), and (2) this Court lacks jurisdiction to adjudicate Plaintiff's negligence claim, pursuant to New York Correction Law § 24. Defendant Montefiore Medical Center has brought a separate motion for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, or, alternatively, a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, also arguing that Plaintiff's claims against it should be dismissed because he failed to exhaust his administrative remedies, as required by 42 U.S.C. § 1997e(a).
For the reasons that follow, this Court grants Defendants' motions.
BACKGROUND
The facts set forth below are drawn from Plaintiff's Third Amended Complaint and are presumed true for the purposes of these motions.
On July 26, 1997, Plaintiff was an inmate on Rikers Island. (Third Amended Complaint (hereinafter "Complaint") § 4.) Plaintiff contends that, on that date, he was summoned to the gymnasium. (Id. §§ 10, 11.) When Plaintiff asked Defendant Moore, a corrections officer at the facility, the reason he was being summoned, Defendant Moore replied that he did not know, but that Plaintiff should proceed to the gymnasium. (Id. § 12). Once inside the room, Plaintiff was questioned by Defendants Marshall, John Doe 1, and John Doe 2, who were also corrections officers, as to what he knew about fights in the prison. (Id. § 14.) When Plaintiff replied that he knew nothing about fighting in prison, Defendant Marshall instructed him to approach the wall and spread his legs. (Id. §§ 14, 15.) Defendants John Doe 1 and/or John Doe 2 then threatened to physically assault Plaintiff if he did not provide information about fighting in the prison. (Id. § 16.) Defendant Marshall then forcibly broke Plaintiff's wrist and threatened to break Plaintiff's other wrist if he told anyone about the incident. (Id. §§ 17, 18.) Defendants Marshall, John Doe 1, and John Doe 2 refused to bring Plaintiff to the hospital for medical attention unless he completed a false accident report, indicating that he had broken his wrist playing basketball. (Id. §§ 19, 20.) After resisting for approximately one hour, Plaintiff agreed to Defendants' demand and filled out the accident report as instructed. (Id. § 20.)
Plaintiff next alleges that, at the Rikers Island Health Services Office, where medical services were provided by Montefiore Medical Center, he was informed that his wrist was broken. (Id. § 21.) He was subsequently brought to Elmhurst Hospital Center, where he was informed that his broken wrist would require surgery and that he should return in approximately one week for the operation. (Id. §§ 22, 23.) Plaintiff was never brought back to the hospital to have the wrist surgery performed. (Id. § 24.) After being transferred to Green Haven Correctional Facility (hereinafter "Green Haven") on November 15, 1997, Plaintiff visited the medical clinic numerous times to request the surgery. (Id. § 26.) During one of these visits, he was informed by a nurse that his appointment for wrist surgery had been canceled for an unknown reason. (Id.) In response to two letters he sent, Plaintiff was told in a memorandum, dated August 6, 1998, signed by Defendant Zwillinger, Green Haven's Regional Health Administrator, that no appointment had ever been scheduled for his surgery. (Id. § 25.) In a subsequent letter, dated October 2, 1998, Defendant Zwillinger acknowledged that Plaintiff's surgery appointment had, in fact, been canceled and needed to be rescheduled. (Id. § 29.) Ultimately, surgery was performed on Plaintiff's wrist.
Plaintiff contends that, due to Defendants' deliberate indifference in delaying his surgery, his wrist healed improperly, requiring him to have surgery to remove a bone from his wrist, which would not have been necessary had the first operation been performed. (Id. § 31.) Despite the operation, Plaintiff still experiences pain and swelling in his wrist. (Id. § 32.)
DISCUSSION
I. Standards for Dismissal
Defendants' motions are brought under Rules 12(b)(1), 12(b)(6), and 12(c) of the Federal Rules of Civil Procedure. In the alternative, Defendant Montefiore has brought a motion for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. Although Defendants have brought their motions under different procedural rules, they are all based on the same factual premise — Plaintiff's alleged failure to exhaust his administrative remedies, as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a).
In addressing a motion to dismiss under Federal Rule of Civil Procedure 12, a court must construe the allegations of the complaint in the plaintiff's favor. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686 (1974) (holding that allegations in a complaint must be construed in the plaintiff's favor in deciding a motion to dismiss under Rule 12(b)(6)); Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (holding that in considering a 12(b)(1) motion to dismiss for want of subject matter jurisdiction, a court must assume as true factual allegations in the complaint); see also Automated Salvage Transp., Inc. v. Wheelabrator Envtl. Sys., Inc., 155 F.3d 59, 67 (2d Cir. 1998); Branham v. Meachum, 77 F.3d 626, 628 (2d Cir. 1996);Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994), cert. denied, 513 U.S. 836, 115 S.Ct. 117 (1994).
In considering a motion to dismiss, the court's task is "'necessarily a limited one.'" George Haug Co. v. Rolls Royce Motor Cars, Inc., 148 F.3d 136, 139 (2d Cir. 1998) (quoting Scheuer, 416 U.S. at 236, 94 S.Ct. at 1686). Dismissal of a complaint for failure to state a claim is warranted only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957);see also ICOM Holding, Inc. v. MCI Worldcom, Inc., 238 F.3d 219, 221 (2d Cir. 2001). The task of a court ruling on a 12(b)(6) motion "'is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" Sims v. Aertex, 230 F.3d 14, 20 (2d Cir. 2000) (quoting Ryder Energy Distrib. Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984)).
On a motion to dismiss under Rule 12(b)(1), for lack of subject matter jurisdiction, a court may resolve jurisdictional fact issues by referring to evidence outside of the pleadings, such as affidavits and documentary exhibits. See Zappia Middle East Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000) (citing Cargill Int'l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1019 (2d Cir. 1993)). In contrast, in deciding a motion to dismiss under Rules 12(b)(6) and 12(c), a court may properly consider only the complaint and any papers appended thereto or referenced therein. See Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000).
Rule 56(c) of the Federal Rules of Civil Procedure provides that a motion for summary judgment may be granted when "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." It is well established that "as a general rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party." Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 330 n. 2, 106 S.Ct. 2548 (1986) (Brennan, J., dissenting)); see also Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d Cir. 1995); Burrell v. City Univ. of New York, 894 F. Supp. 750, 757 (S.D.N Y 1995). If, when viewing the evidence produced in the light most favorable to the nonmovant, there is no genuine issue of material fact, then the entry of summary judgment is appropriate. See Burrell, 894 F. Supp. at 758 (citing Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991)); Dobbin v. Aertex, 143 F. Supp.2d 292, 299 (S.D.N.Y. 2001).
II. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act (hereinafter "PLRA") provides that "no 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). When an inmate fails to satisfy the PLRA's exhaustion requirements prior to filing his complaint, the court must dismiss the complaint and require that the plaintiff exhaust his remedies before refiling. See Neal v. Goord, 267 F.3d 116, 122-23 (2d Cir. 2001);Snider v. Melindez, 199 F.3d 108, 109 (2d Cir. 1999); Salahuddin v. Mead, 174 F.3d 271, 274 n. 1 (2d Cir. 1999); Long v. Lafko, No. 00 Civ. 0723 (VM), 2001 WL 863422, at *2 (S.D.N.Y. July 31, 2001); Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp.2d 303, 307-8 (S.D.N.Y. 2001). The exhaustion requirement is designed to provide prompt notice of inmate complaints to prison administrators so that they have an opportunity to evaluate and to address prisoner complaints prior to any judicial intervention. See Lawrence v. Goord, 238 F.3d 182, 186 (2d Cir. 2001). This requirement serves to reduce frivolous prison litigation and to avoid judicial micromanagement of prisons. See Royster v. United States, 91 F. Supp.2d 626, 628 (S.D.N.Y. 2000) Cuoco v. United States Bureau of Prisons, No. 98 Civ. 9009 (WHP), 2000 WL 347155, at *7 (S.D.N.Y. Mar. 31, 2000); Cruz v. Jordan, 80 F. Supp.2d 109, 114-15, 119 (S.D.N.Y. 1999).
Plaintiff's claims do not evidence, nor does he assert, that he was "singled out for the denial of medical services" or that the responses to his medical needs by prison medical services were "different or more particularized than the responses generally received by other prisoners."Neal v. Goord, 267 F.3d 116, 120-21 (2d Cir. 2001). Thus, Plaintiff's medical care claims involve "prison conditions," and require the exhaustion of administrative remedies under the PLRA. See Neal, 267 F.3d at 121; Boomer v. Lanigan, No. 00 Civ. 5540 (DLC), 2001 WL 1646725, at *2 (S.D.N.Y. Dec. 17, 2001).
Defendants Montefiore Medical Center and Zwillinger both assert that Plaintiff's claims should be dismissed because he failed to exhaust his administrative remedies. In support of his motion, Defendant Zwillinger has submitted an affidavit from Thomas Eagan, the Director of the Inmate Grievance Program at the New York State Department of Correctional Services (hereinafter "DOCS"), stating that the DOCS Central Office has no record of any appeal of a grievance regarding medical care filed by Plaintiff. (Affidavit of Thomas C. Eagan, Oct. 31, 2000, attached as Exhibit ("Ex.") A to Defendant Zwillinger's Notice of Motion (hereinafter "Eagan Aff.") §§ 3-4.) Defendant Montefiore has submitted an affidavit from the Director of the Inmate Grievance Resolution Program for the New York City Department of Correction, in which he states that a search of the grievance records indicates that Plaintiff did not file any grievances while he was in custody on Rikers Island. (Affidavit of Arthur Harris, Dec. 5, 2000, §§ 4-6.)
A copy of the City of New York Department of Correction Directive setting forth the policies and procedures of its Inmate Grievance Program (Directive No. 3375R, Mar. 4, 1985 (hereinafter "Directive")) was also submitted. (Defendant Montefiore Medical Center's Notice of Motion, Ex. B.)
Plaintiff contends that, for several reasons, his failure to exhaust administrative remedies should be excused.
A. Monetary Damages
Plaintiff claims that he is not required to exhaust his administrative remedies because he is only suing for money damages, and therefore does not have an available remedy either through the New York City or New York State administrative grievance processes. This argument must fail. The Supreme Court has recently held that the PLRA requires administrative exhaustion prior to an inmate's initiation of an action under 42 U.S.C. § 1983, even where the inmate seeks only money damages, and money damages cannot be awarded through the prison grievance process.See Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 1825 (2001); see also Marvin v. Goord, 255 F.3d 40, 43 (2d Cir. 2001); Graham v. Cochran, No. 96 Civ. 6166 (LTS) (RLE), 2001 WL 902473, at *3 (S.D.N.Y. Aug. 3, 2001).
Thus, the absence of a monetary remedy does not excuse Plaintiff's failure to exhaust his administrative remedies.
B. Efforts to Exhaust Administrative Remedies
Plaintiff next argues that his Complaint should not be dismissed since he made an effort to exhaust his administrative remedies.
1. Defendant Montefiore Medical Center
Plaintiff sustained a broken wrist as Rikers Island on July 27, 1997. He was initially treated on Rikers Island by Montefiore Medical Center staff, and, on the same day, was taken to Elmhurst Hospital Center. Although Plaintiff claims that he was told that he should be returned to the hospital within one week to have surgery, he was not taken back to the hospital during the nearly two months that he remained on Rikers Island. (Third Amended Complaint §§ 22-25; Declaration of Trevor Burns, Dec. 26, 2000 ("Burns Decl.") §§ 3-5.) Plaintiff contends that the delay he experienced in receiving the surgery resulted in permanent injury to his wrist. Defendant Montefiore contends that because Plaintiff failed to file a grievance about his medical care while at Rikers Island, his claims should be dismissed.
When an inmate makes a "reasonable attempt to exhaust" his administrative remedies, that is somehow impeded, he may be deemed to have satisfied the PLRA's exhaustion requirement. See Rodriguez v. Hahn, No. 99 Civ. 11663 (VM), 2000 WL 1738424, at *2 (S.D.N.Y. Nov. 22, 2000);accord Long, 2001 WL 863422, at *2 n. 1. Moreover, if an inmate is not allowed to file a grievance by prison authorities, a question exists as to whether he, in fact, had any available administrative remedies. See Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001) ("We believe that a remedy that prison officials prevent a prisoner from utilizing is not an "available" remedy under § 1997(e)(a).") (internal quotation marks omitted); Feliciano v. Goord, No. 97 Civ. 263 (DLC), 1998 WL 436358, at *2 (S.D.N.Y. July 27, 1998) (holding that dismissal for failure to exhaust is not appropriate where plaintiff was unable to file a grievance as a result of prison officials' telling him that the incident he wished to complain about was not a "grievance matter" and refusing to provide him with grievance forms); cf. Harris v. New York City Dep't of Corr., No. 00 Civ. 7164 (NRB), 2001 WL 845448, at *3 (S.D.N.Y. July 25, 2001) ("[B]ecause the complaint does not even allege that [the prisoner] attempted to use the IGP and was rebuffed, he simply does not raise a credible inference that the IGRC was nonexistent or ineffectual."). In addition, in some cases, a defendant may be estopped from asserting the failure to exhaust administrative remedies as an affirmative defense, where it leads an inmate to believe that the filing of a grievance is impossible or futile. See Davis v. Frasier, No. 98 Civ. 2658 (HB), 1999 WL 395414, at *4 (S.D.N.Y. June 15, 1999).
Plaintiff has offered no evidence to suggest that he made a reasonable effort to exhaust his administrative remedies against Montefiore. There is no disagreement that Plaintiff never filed any grievances about his medical care during the several months he was on Rikers Island. Nor did he file or attempt to file any grievance during the following six weeks, between September 30, 1997, and November 15, 1997, when he was incarcerated at Downstate Correctional Facility. It was only after he was transferred to Green Haven Correctional Facility, some time after November 15, 1997, that Plaintiff made an inquiry to state officials about filing a grievance, and he alleges that he was "informed by the Superintendent [of Green Haven] that [he] could not file and pursue a grievance against Rikers Island while incarcerated at Greenhaven [sic]." (Burns Decl. § 9.) Simply asking a state official about filing a grievance regarding acts which took place months earlier at a city institution is not a "reasonable attempt to exhaust," and cannot excuse a failure to exhaust administrative remedies. Even if Plaintiff had been told that he could not file a grievance against Defendant Montefiore at Green Haven, that fact would not suggest that Plaintiff was deliberately impeded from exhausting his administrative remedies against Montefiore. There is no obligation on the part of the state correctional system to accept grievances with respect to another system. Plaintiff had months to file a grievance while he was still on Rikers Island. There is no allegation that he was prohibited from doing so. Nor is there any suggestion that Plaintiff became aware of Montefiore's failure to send him for surgery only after he was no longer in the custody of the New York City Department of Correction; Plaintiff has claimed that he was supposed to have been taken to Elmhurst Hospital for surgery within one week of his original injury. He never even attempted to communicate with or send a grievance to New York City correctional officials.
In his original pro se Complaint, in response to the request that he state what steps he took to satisfy the prison grievance procedure, Plaintiff wrote "[t]his prison don't [sic] deal with grievances out side [sic] this facility."
Plaintiff next argues that because he no longer had any available administrative remedies against Defendant Montefiore after his transfer to Green Haven, he "could not have had an obligation to exhaust his administrative remedies." (Memorandum of Law in Opposition to the Motion to Dismiss of Defendant Larry Zwillinger and the Motion for Judgment on the Pleadings or, Alternatively Summary Judgment on the Second and Third Causes of Action, by Defendant Montefiore Medical Center, Dec. 13, 2000 ("Pl.'s Mem.") at 1-2.) It appears that once Plaintiff was at Green Haven, he could no longer file an administrative grievance against Montefiore. This prohibition is not apparent from the Inmate Grievance Resolution Directive; however, in a long-delayed submission by Defendants' counsel, which was requested by the Court because of unaddressed issues in Defendants' original submissions, it is confirmed that "an individual who is no longer in the custody of the NYCDOC cannot file a grievance with the NYCDOC because the inmate is longer being subjected to the prison condition." (Letter of Kathleen A. Donahue, Esq., Jan 11, 2002 ("Donahue Letter").)
This Court can imagine a situation where a prisoner could plausibly argue that he was effectively denied access to an administrative remedy because he could not file a grievance with the New York City Department of Correction after he was transferred from the facility in which his complaint arose. For example, if an inmate's injury were to arise shortly before he was transferred from the facility, it might be impossible or extremely difficult for him to file a grievance prior to his transfer.Cf. Graham v. Perez, 121 F. Supp.2d 317, 322 (S.D.N.Y. 2000) (allowing for the possibility of waiver of the exhaustion requirement where there were mitigating circumstances, such as transfer to a different facility); Muller v. Stinson, No. 99-CV-0624, 2000 WL 1466095, at *2 (N.D.N.Y. Sept. 25, 2000) ("If, in fact, plaintiff was not transferred until after a grievance could have been filed and processed, then his claim must be dismissed for failure to exhaust administrative remedies. On the other hand, if he did not have an opportunity to avail himself of the grievance procedure before his transfer, then he is not required to exhaust his administrative remedies.").
This, however, is not such a case. As discussed above, Plaintiff's claim arose in July 1997 and he remained in the custody of the New York City Department of Correction for approximately two more months; he was free to file a grievance about being deprived of surgery for his wrist at any time during those two months. To accept the argument that Plaintiff should be relieved of the statutory obligation to exhaust his administrative remedies because he chose to wait to inquire about filing a grievance no less than four months after his claim arose — when it was no longer possible to do so — would eviscerate the PLRA exhaustion requirement. See Wright v. Morris, 111 F.3d 414, 417 n. 3 (6th Cir. 1997) (stating that it is contrary to Congress's intent in enacting the PLRA to allow inmates to bypass the exhaustion requirement by waiting until their administrative remedies are time-barred).
In this case, Plaintiff did not attempt to file even an untimely grievance.
The PLRA requires a prisoner to exhaust his administrative remedies before he files a civil action. See Neal, 267 F.3d at 121-22 (adopting the position of other circuits, Second Circuit holds that exhausting administrative remedies after a complaint is filed will not save a case from dismissal). Thus, the relevant question is whether the prisoner had remedies available before he filed his action, yet failed to exhaust them. Here, Plaintiff had administrative remedies available to him and failed to exhaust them. Cf. Snider, 199 F.3d at 113-14 (whether an administrative remedy was available to a prisoner at a particular prison is a question of law). Moreover, he can no longer do so because the administrative remedies that were once available to him are no longer available. (Donahue Letter at 2 ("[I]f this action is dismissed plaintiff cannot file a grievance about the medical care he received while in the custody of the NYCDOC as he is no longer in the custody of the NYCDOC.").) There is therefore no reason to dismiss this action without prejudice, so that Plaintiff can seek to exhaust his administrative remedies. Accordingly, Plaintiff's claims against Montefiore are hereby dismissed with prejudice. See Rivera v. State of New York, No. 96 Civ. 7697 (RWS), 1999 WL 13240, at *4 (S.D.N.Y. Jan. 12, 1999) (dismissing city inmate's medical care complaint because he had failed to file a grievance about his medical care when he was in the city's custody); cf.McCoy v. Gilbert, 270 F.3d 503, 510 (7th Cir. 2001) (where a prisoner had some authority to take some sort of action with respect to a tardy grievance, he must make an attempt to use the administrative process);Steele v. New York State Dep't of Corr., No. 99 Civ. 6111 (LAK), 2000 WL 777931, at *1 (June 19, 2000) (rejecting a prisoner's contention that he no longer had any administrative remedies available to him, because the New York State prison grievance procedures have a hardship exception which allows for untimely grievances to be considered).
2. Defendant Zwillinger
Defendant Zwillinger also claims that Plaintiff failed to exhaust his administrative remedies with respect to Zwillinger and Plaintiff's medical care at Green Haven, a New York State correctional facility. In response, Plaintiff claims that on August 8, 1998, approximately eight months after he was transferred to Green Haven, he completed an inmate grievance form regarding the failure of authorities at Green Haven to schedule his wrist surgery, and delivered it to the grievance clerk. (Burns Decl. § 11.) A copy of this grievance, with only Plaintiff's portion completed, has been provided to the Court. (Affidavit of Beverly Jo Slaughter, Esq., Dec. 13, 2000 ("Slaughter Aff."), Ex. D.) Plaintiff contends that this grievance was never addressed. (Burns Decl. § 12.) Plaintiff also recalls submitting a second grievance form, although he claims that he can no longer locate his copy of the form. (Burns Decl. § 13.) Although Defendant Zwillinger does not address directly Plaintiff's contention that he filed a grievance about his medical care, he has submitted evidence indicating that there is no record of Plaintiff's having appealed any grievance (Eagan Aff. §§ 3-4), and, in fact, Plaintiff does not claim to have appealed any grievance.
New York State's Inmate Grievance program allows prisoners to appeal matters that are not addressed at a lower grievance level within the prescribed time. See N.Y. Comp. Codes R. Regs. tit. 7, § 701.8. Thus, even if Plaintiff received no response to his initial grievance, Plaintiff could have sought the next level of review, in this case, to the prison superintendent. See id. § 701.7(b). In the absence of any attempt to do so, the Court cannot conclude that Plaintiff exhausted his available administrative remedies. See Long, 2001 WL 863422, at *2 (dismissing a complaint where a plaintiff failed to appeal a grievance to a higher level of the grievance process after not having received a determination at the lower grievance level); see also Graham v. Cochran, 2001 WL 902473, at **3-4 (dismissing case where prisoner failed to fully exhaust his administrative remedies by appealing the denial of his grievance); Sulton v. Greiner, No. 00 Civ. 0727 (RWS), 2000 WL 1809284, at **3-4 (S.D.N Y Dec. 11. 2000) (same). Moreover, Plaintiff theoretically still has administrative remedies available to him, since the New York State DOCS grievance procedures allow untimely appeals to be considered based on mitigating circumstances. See N.Y. Comp. Codes R. Regs., tit. 7, § 701.7(a)(1).
This Court thus concludes that Plaintiff failed to exhaust his administrative remedies against Defendant Zwillinger. Therefore, Defendant Zwillinger's motion to dismiss the Complaint, without prejudice to refiling, is granted. See Santiago v. Meinsen, 89 F. Supp.2d 435, 441 (S.D.N.Y. 2000) (dismissing prisoner complaint without prejudice, permitting plaintiff to seek an exception to the time limit for filing grievances); Graham v. Perez, 121 F. Supp.2d 317, 322 (S.D.N.Y. 2000) (same); Beatty v. Goord, No. 98 Civ. 2136 (RMB), 2000 WL 288358, at *5 (S.D.N.Y. Mar. 16, 2000) (dismissing complaint without prejudice and directing plaintiff to file and pursue grievance pursuant to Inmate Grievance Program).
III. Plaintiff's Negligence Claim
Plaintiff has withdrawn his third cause of action for negligence, indicating in his memorandum of law that it is subsumed within his second cause of action. (Pl.'s Mem. at 3 n. 2.) Accordingly, the Court need not reach the issue of whether, as Defendant Zwillinger contends, New York Correction Law § 24 requires that this claim be brought in the New York Court of Claims.
CONCLUSION
For the above reasons, Plaintiff's third cause of action for negligence is deemed withdrawn; Defendant Zwillinger's motion to dismiss the Third Amended Complaint as to him, without prejudice to refiling after the exhaustion of administrative remedies, is granted; and Defendant Montefiore Medical Center's motion to dismiss Plaintiff's second cause of action with prejudice is granted.
Plaintiff's first cause of action, alleging the use of excessive force against him, is not affected by any of the instant motions.