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finding the plaintiff's failure to appeal an adverse decision on his grievance constituted a failure to exhaust administrative remedies, despite his claim of never receiving notice of the decision on his grievance
Summary of this case from Ceara v. DeaconOpinion
00 Civ. 0146 (GEL)
November 20, 2002
Francisco Mendoza, pro se.
Maria Barous Hartofilis, Assistant Attorney General, New York, NY, (Eliot Spitzer, Attorney General of the State of New York. of Counsel)for Defendants Glenn S. Goord, et al.
OPINION AND ORDER
Francisco Mendoza, a New York state prisoner, brought this action against a number of prison officials, alleging that the defendants used excessive force against him in an incident on April 30, 1999, and that they exhibited deliberate indifference to his medical needs following the incident. On August 21, 2001, this Court, adopting a Report and Recommendation ("RR") of United States Magistrate Judge Theodore H. Katz, dismissed the action against a number of defendants who were not alleged to be personally involved in the incident in question, and on August 20, 2002, again adopting an RR of Judge Katz, the Court granted summary judgment in favor of another officer as to whom no evidence indicated involvement in the incident, and in favor of all remaining defendants on the claim of deliberate indifference. The case appeared ready for trial on the remaining claim of excessive force, as to the merits of which genuine issues of material fact concededly exist.
At a conference on August 22, 2002, the remaining defendants sought and received permission to make a supplemental motion for summary judgment on the ground that Mendoza had failed to exhaust available administrative remedies concerning the incident, as required by 42 U.S.C. § 1997e(a). Defendants pointed out that their earlier motion for summary judgment had been made, and fully briefed, before the Supreme Court made clear inPorter v. Nussle, 534 U.S. 516 (2002), that exhaustion is required even in cases that, like this one, challenge a single use of excessive force, rather than general "prison conditions" as that term is conventionally understood — thus overturning the interpretation of the statute previously prevailing in this Circuit, under which exhaustion was not required in excessive force cases. Defendants now argue that, because Mendoza has not exhausted his administrative remedies, his case must be dismissed. The motion will be granted.
Factual Background
There is no genuine dispute about any fact material to defendants' argument. It is undisputed that Mendoza did file a grievance within the prison system on May 3, 1999, just a few days after the incident, thus commencing an effort to secure an administrative remedy for the alleged wrong. (Alexis Decl. Ex. A.) Prison files document that the grievance was denied by the Superintendent on May 25, 1999. (Id. Ex. B.) Mendoza did not file an administrative appeal of the Superintendent's decision. He does not dispute the records showing the denial of the grievance or his failure to appeal, but asserts that he never received notice of the decision.
Mendoza filed a second grievance in August 1999, complaining that he never received a ruling on his earlier grievance. (Alexis Decl. Ex. C.) This grievance was also denied (Id. Ex. D), and the denial was never appealed. Mendoza claims he did not receive notice of that decision, either.
Discussion
Established law inexorably requires dismissal of this action. The statute flatly provides that "No action shall be brought with respect to prison conditions . . . by a prisoner . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). As noted above, the Supreme Court made clear in Porter v. Nussle that a claim of excessive force is an "action . . . with respect to prison conditions" to which this requirement applies.New York's Department of Correctional Services has established an administrative process for prisoner grievances that applies to claims such as Mendoza's. The process, detailed in 7 N.Y.C.R.R. § 701.7 and described in cases such as Vasquez v. Artuz, Dkt. No. 97 Civ. 8427 (AJP), 1999 WL 440631, at *5 (S.D.N.Y. June 28, 1999), expressly provides that adverse decisions by superintendents on prisoner grievances may be appealed to the Central Office Review Committee ("CORC"). These procedures are outlined in the state-wide Standards of Inmate Behavior handbook, which is "routinely" distributed to all inmates upon admission to a DOC facility. People v. Jones, 521 N.Y.S.2d 194, 196 (N.Y. APP. Div. 1987);see also Young v. Coughlin, 1988 WL 34815, Dkt. No. 86 Civ. 2845 (LLS), at * 1 (S.D.N.Y. April 5, 1988). It is well established that the exhaustion requirement is not satisfied until and unless all administrative appeals have been completed. Booth v. Churner, 532 U.S. 731, 734-35 (2001). Thus, Mendoza's failure to appeal the adverse decision on his grievance constitutes a failure to exhaust his administrative remedies that dooms his claim.
Mendoza's claim that he never received a copy of the superintendent's adverse decision, which must be accepted for purposes of this motion in light of the factual dispute, is not material to this result. If, as a result of negligent error by prison officials — or even their deliberate attempt to sabotage a prisoner's grievance — the prisoner does not receive a copy of the decision on his complaint, he is not thereby forestalled from appealing to CORC. The regulations mandate a prompt decision on all grievances, 7 N.Y.C.R.R. §§ 701.7(a)(3), (b)(5) (as well as expedited review for complaints of harassment by prison personnel, id. § 701.11), and specifically provide that if the determination is delayed, the inmate may appeal to the next level of review, including CORC, without waiting for administrative action. Id. §§ 701.8, 701.11(b)(6). Thus, even accepting Mendoza's claim that he was never notified of the rejection of his grievance (or even had that rejection never occurred), the regulations clearly permit an appeal, and filing such an appeal is accordingly required by § 1997e(a) before a suit can be brought in federal court. This inescapable conclusion has been consistently and unsurprisingly reached by courts in this district. Martinez v. Williams, 186 F. Supp.2d 353, 357 (S.D.N.Y. 2002); Braswell v. Johnson, Dkt. No. 99 Civ. 1376 (RCC), Report and Recommendation at 12 (S.D.N.Y. March 22, 2002); Dawkins v. Selsky, Dkt. No. 01 Civ. 3130 (CLB), Report and Recommendation at 8 (S.D.N.Y. March 1, 2002). The Second Circuit has at least implicitly approved it as well. Gibson v. Goord, 280 F.3d 221 (2d Cir. 2002).
Defendants' assertion that Gibson establishes "the law in this circuit" on this point (D. Mem. at 13) is perhaps overstated. The Court in Gibson expressly decided only that the claims raised in the cases before it addressed "prison conditions" even under the Second Circuit's pre-Porter understanding of that term. One of the complaints involved had been dismissed for failure to exhaust where the prisoner had filed a grievance but failed to appeal when the grievance "elicited no response" — as would have been permitted under the relevant Connecticut regulations. 280 F.3d at 223. But it is not clear from the opinion whether the district court's ruling that the prisoner had failed to exhaust in these circumstances was challenged on appeal. At a minimum, since it affirmed the dismissal of the complaint, the Court evidently saw no obvious flaw in that ruling.
Beyond claiming that he never received a ruling on his grievance, Mendoza has made no argument that would either excuse his failure to exhaust or otherwise cast any doubt on the above analysis. His other contentions in opposition to the summary judgment motion either attempt belatedly to reargue the dismissals previously granted, or to seek (equally belatedly) further discovery that, whatever its potential bearing on the merits of his claim, is irrelevant to the procedural issue that proves dispositive of the case. Accordingly, Mendoza's excessive force claim must be dismissed for failure to exhaust administrative remedies.
Defendants arguably could have sought dismissal of all of plaintiffs' claims for failure to exhaust. However, § 1997e(a)'s exhaustion requirement is not jurisdictional and may be waived. See Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002); Foulk v. Charrier, 262 F.3d 687, 697 (8th Cir. 2001); Perez v. Wisconsin Dept. of Corr., 182 F.3d 532, 536 (7th Cir. 1999). By successfully seeking dismissal with prejudice on other grounds, the defendants who have already been dismissed from the case, and the remaining defendants with respect to the deliberate indifference claim, waived the exhaustion argument.
It must be acknowledged that Mendoza tried many avenues to seek relief from prison authorities. In addition to filing the grievance he failed to pursue to the end, Mendoza alleges that he wrote letters of complaint to various prison officials, including the Deputy Superintendent of his institution, the Commissioner of DOCS, and its inspector general. (Compl. ¶ 12.) But as courts in this district have repeatedly held, however vigorously and unsuccessfully an inmate seeks redress of grievances within the prison bureaucracy, he does not exhaust his remedies as required by § 1997e(a) unless he pursues the proper channels provided by the state for remedying his situation. Hemphill v. New York, 198 F. Supp.2d 546, 549 (S.D.N.Y. 2002); Grey v. Sparhawk, Dkt. No. 99 Civ. 9871 (HB), 2000 WL 815916, at *2 (S.D.N.Y. June 23, 2000). Congress has made the exhaustion of those remedies, including the administrative appeal of adverse or delayed rulings on grievances filed, a prerequisite to relief under 42 U.S.C. § 1983.
Conclusion
Accordingly, the defendants' motion for summary judgment dismissing plaintiff's remaining claim for failure to exhaust his administrative remedies is granted.