Opinion
No. 00 Civ. 8167 (HB).
October 10, 2001.
OPINION ORDER
Rodolfo Grey, a state inmate proceeding pro se, brings this action under 42 U.S.C. § 1983 alleging he was beaten by the defendants, corrections officers at the Green Haven Correction Facility, in violation of his Eighth Amendment rights. Defendants via the Office of the Attorney General moved by summary judgment pursuant to Fed.R.Civ.P. 56 to dismiss the plaintiffs complaint for his failure to exhaust administrative remedies. In the alternative, defendants seek to stay this action pending the Supreme Court's ruling in Nussle v. Willette, 224 F.3d 95 (2d Cir. 2000), cert. granted sub nom., Porter v. Nussle, 121 S.Ct. 2213 (June 4, 2001) (No. 00-853) (Mem4 For the reasons set forth below, I do not stay this action and defendants' summary judgment motion is DENIED.
I. BACKGROUND
Plaintiff Rodolfo Grey ("Grey"), an inmate at the Green Haven Correctional Facility, alleges that several corrections officers ("defendants") acting under color of law violated his Eighth Amendment right to be free from cruel and unusual punishment when they beat him on February 18, 1999. The particular circumstances of that incident, while disputed between the parties, are not relevant to the dispositive issue here. I recite the alleged facts in only a cursory fashion in the light most favorable to the plaintiff.
Grey asserts that corrections officers at the Green Haven Correctional Facility in Stormville, New York, beat him with excessive force on February 18, 1999. The incident was sparked when Officer Jared Sparhawk, upon escorting Grey down the hall, grabbed him by the shoulder and "ripped [Grey's] skin." (Compl. ¶ 2). A "physical challenge" ensued in which Sparhawk used "uncontrolled force" and was later joined by fellow Officers William Kelly and Raymond Meyer in kicking and beating Grey into unconsciousness with a baton. Grey contends the beatings continued after he gained consciousness, while Officer David Kaufman held him and Officer Jerry Surber clubbed his right leg. Surber allegedly told Grey, "you will never walk on this leg again." (Compl. ¶ 8). The incident continued when the officers proceeded to "karate kick" and drag Grey along the ground. (Compl. ¶¶ 9-10).
The defendants assert an entirely contradictory perspective of the incident. They claim that it was Grey who first assaulted them.
II. PROCEDURAL HISTORY
Grey first filed a lawsuit under 42 U.S.C. § 1983 against the above named officers ("defendants") in September, 1999 seeking compensatory and punitive damages. As a matter of law, a prisoner may not file a lawsuit pursuant to Section 1983 with respect to prison conditions until he or she has exhausted all available administrative remedies. The Prison Litigation Reform Act ("PLRA"), signed into law by President Clinton in 1996, provides in relevant part:
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) (emphasis added).
In light of the PLRA, the defendants then moved before me to dismiss Grey's initial complaint for failure to exhaust administrative remedies. Grey conceded in his complaint that he had not filed a formal grievance at his place of confinement prior to filing this action. See Grey v. Sparhawk, 99 Civ. 9871 (HB), 2000 WL 815916, *1 (S.D.N.Y. 2000) ("Grey I"). Instead, Grey argued that any formal complaint on his part would have been "futile" because the prison's superintendent had "predetermined" that he was culpable. See Id. After a determination that Grey's futility argument did not satisfy the PLRA's exhaustion requirement, and from my plain reading of the statute, I granted on June 23, 2001 the defendants' motion to dismiss the complaint without prejudice. See Id.
Grey claimed that the superintendent had signed a report stating that the "use of force are (sic) justified" in his case, therefore frustrating any effort by Grey to present his grievance to an impartial adjudicator. See Grey I, 2000 WL 815916 * 1. Three days after his first case was dismissed, Grey attempted to file a grievance with the DOCS Inmate Grievance Program on June 26, 2000, but it was rejected as untimely. (Grey Dec., Ex. J, Memorandum of J. Meck). DOCS grievance procedures require that a complaint be filed within 14 calendar days of the alleged incident. 7 N.Y.C.R.R. § 701.7(a)(1).
Grey now brings his action before this court for a second time in light of an altered legal landscape that has tipped in his favor. Subsequent to the dismissal of Grey's first complaint, the Second Circuit in August, 2000 issued its decision in Nussle v. Willette, 224 F.3d 95 2d 2000), cert. granted sub nom., Porter v. Nussle, 121 S.CT. 2213 (June 4, 2001) (No. 00-853) (Mem.). In Nussle, the Circuit held that the exhaustion requirement of the PLRA does not apply to assault and excessive force claims. See Nussle, 224 F.F.3d at 100. The law in Nussle is clear, and I am guided by its holding here.
III. DISCUSSION
Excessive force claims under Nussle
In Nussle, as here, a state inmate who was allegedly beaten by corrections officers sued the officers under Section 1983 for constitutional violations. Upon motion by the defendants, the district court dismissed the complaint for failure to exhaust administrative remedies. On appeal, the Second Circuit framed the issue, one of first impression, as: "whether the exhaustion requirement of the [PLRA] encompasses claims for excessive use of physical force under the Eighth Amendment." Nussle, 224 F.3d at 97. This is the precise issue that comes before me here. After a deliberate examination of the text, structure, purpose and legislative history of the PLRA, the Circuit reversed the district court, finding that the exhaustion requirement under the PLRA was explicitly limited only to federal actions brought with respect to prison conditions, which did not include claims of assault or excessive force. See Nussle, 224 F.3d at 99-100 (distinguishing between claims for "excessive force" and "prison conditions" for the purpose of exhaustion under § 1997e(a)). The Second Circuit defined "prison conditions" in section 1997e(a) as "circumstances affecting everyone in the area affected by them, rather than single momentary matters, such as beating or assaults, that are directed at particular individuals." Id. at 101 (internal quotations omitted). This interpretation was recently reiterated by the Second Circuit in Marvin v. Goord, 255 F.3d 40, 41 (2d Cir. 2001).
On June 4, 2001, the United States Supreme Court granted certiorari in Nussle. Porter v. Nussle, 121 S.Ct. 2213 (2001) (No. 00-853) (Mem.).
The defendants now seek in their instant motion to again dismiss Grey's complaint for failure to exhaust his available administrative remedies. The defendants, however, concede outright that "petitioner's claims alleging excessive force would be exempt from § 1997e(a)'s exhaustion requirement if the Second Circuit's Nussle holding were allowed to stand." (Dfds. Mem. p. 6). Constrained by the clarity of the Second Circuit's holding, yet convinced that the Supreme Court will soon reverse Nussle, the defendants now urge that I side-step the law as a preemptive measure against what they perceive to be an imminent change in the legal terrain.
The defendants largely focus their arguments on demonstrating Grey's failure to properly exhaust his administrative remedies provided by the DOCS program. This issue, however, is immaterial under Nussle. The defendants also argue that the instance case should be guided by Booth v. Churner, 531 U.S. 956 (2001). The reasoning in Booth, the defendants assert, undermines the holding in Nussle. Booth, however, held that where a prison administrative procedure has authority to take some action in response to an inmate's grievance, the PLRA requires exhaustion of a claim for monetary damages even if monetary damages are not available in the administrative proceeding. See Marvin v. Goord, 255 F.3d 40, 43 (2d Cir. June 19, 2001) (summarizing the holding in Booth). Booth is therefore beside the point. Additionally, the defendants fairly concede that if Booth had effectively reversed Nussle, there would have been little reason for the Supreme Court to grant certiorari in Nussle.
Grey's complaint is clearly one alleging excessive force, pursuant to section 1983, and therefore falls outside the scope of the PLRA's exhaustion requirement, as stated by this Circuit in Nussle.
IV. CONCLUSION
For the above reasons, defendants' motion for summary judgment, or in the alternative to stay this action, is DENIED. The trial of this matter is set for November 5, 2001, with pre-trial order materials to be submitted to this court no later than October 25, 2001. That schedule remains in full force and effect. Further, if any writs are required to insure the presence of witnesses and parties, the Attorney General is to prepare and present them as soon as conveniently possible.