Opinion
02 Civ. 6523 (HBP)
April 26, 2004
OPINION AND ORDER
I. Introduction
This is a civil rights action brought by a former federal pretrial detainee alleging that excessive force was used against him by Bureau of Prison authorities at the New York Metropolitan Correction Center ("MCC-NY"). All parties have consented to my exercising plenary jurisdiction pursuant to 28 U.S.C. § 636(c). Defendants move to dismiss the Second Amended Complaint and for summary judgment on a variety of grounds. For the reasons set forth below, defendants' motion is granted.
Defendants' motion was originally addressed to the complaint which has been amended twice, the current complaint being denominated the "Second Amended Complaint" ("SAC"). I held a conference call with counsel for all parties on December 23, 2003, and counsel agreed at that time that the pending motion was not entirely mooted by the amendments to the complaint and that no valid purpose would be served by dismissing the pending motion without prejudice and requiring that the motion be re-briefed and specifically directed to the SAC. Accordingly, I deem the motion to be addressed to the SAC.
II. Facts
Most of the events in issue have been recorded on a videotape made by Bureau of Prisons personnel, a copy of which has been submitted by defendants in connection with the present motion. Plaintiff makes no claim that the videotape is inaccurate or has been edited, and my statement of the facts is based principally on what is depicted on the videotape.
On June 14, 2002, two inmates were engaged in a fight on Unit 9 North, and several members of the MCC staff, including Special Investigative Agent Glenn A. Carrino, responded. The videotape shows an unidentified member of the MCC staff attempted to hold plaintiff against the wall, but plaintiff kept taking his hands off the wall, and gesturing toward another inmate stating "He didn't have nothin' to do with it, nothin'." An unidentified individual then yelled "Nothin' there, gotta couple more, gotta couple more, that ain't it." Then plaintiff stated "Rats don't run nothin'! Fuckin' coward. And don't come to Brooklyn and threaten that shit you motherfuckers know where [inaudible]." Although an unidentified guard repeatedly attempted to hold plaintiff's hands against the wall, plaintiff-kept taking his hands off the wall, repeatedly gesturing towards another inmate and stating "Rats don't run nothin'."
Two guards in addition to an individual in a gray shirt and tie (who I assume is Special Investigative Agent Carrino) then converged on plaintiff, pinned him against the wall and pulled his arms behind his back in an apparent effort to handcuff plaintiff. After plaintiff's arms were behind his back, at least two more guards converged on plaintiff, and plaintiff either fell or was pushed to the floor. It is impossible to tell from the videotape whether plaintiff was resisting being handcuffed; his hands are obscured by prison guards. Plaintiff did not say anything and there were no visible attempts to gesture immediately before he wound up on the floor.
After he was on the floor, plaintiff struggled with four or five guards. It appears that petitioner was initially on his stomach, was then on his back and was. then rolled back onto his stomach. At one point, his arm can be seen flailing, and, although it is not entirely clear, it appears that he was resisting. While plaintiff and the guards were on the floor, an unidentified voice repeatedly stated "Calm down, man;" it is impossible to tell from the videotape whether a guard or another inmate was making this statement. While he is on the floor, petitioner yells "My asthma pump, my asthma pump. I can't breath. Hey, give me my asthma pump."
Approximately forty seconds after he hit the floor, plaintiffs' hands were cuffed behind his back and his ankles were chained. Plaintiff was then lifted by three guards (one at each shoulder and one at the ankles) and carried from the area and up a flight of stairs in a face down position with his head first. At one point while he is being carried, plaintiff turned towards the camera and said, "Could you all get my asthma pump?" He did not appear to be in respiratory distress when he made this statement; he was not gasping nor was he wheezing or short of breath.
Petitioner and the three guards carrying him approached a large dark door. As they reach the door, a loud thud is heard, and the guards' movement stopped. Plaintiff claims that the guards carrying him intentionally rammed his head into the door. The videotape shows the incident from the rear and it is impossible to tell from the videotape what caused the thud, whether plaintiff's head made contact with the door or whether the thud even came from the door. Nevertheless, the images on the videotape are not inconsistent with and do not disprove plaintiff's contention that his head was deliberately rammed in to the door. Approximately four seconds after the thud, the door opened and plaintiff was carried through the doorway.
The elapsed time from the commencement of the video tape through the point at which plaintiff is carried through the door is approximately 97 seconds.
There appears to be no dispute that plaintiff suffered a wound to his head in the course of his altercation with the guards and that the wound required four stitches.
Based on the foregoing, plaintiff alleges a claim against the individual defendants for excessive force and a claim against the United States for assault and battery under the Federal Tort Claims Act ("FTCA"); all other claims that are asserted or suggested in plaintiff's initial complaint have been withdrawn (Plaintiff's Memorandum of Law in Opposition to Defendants1 Motion for Summary Judgment, dated April 3, 2003, at 2). Plaintiff claims that he was unnecessarily knocked down, that excessive force was used against him while he was on the floor and that the guards carrying him after he was handcuffed deliberately rammed his head into a door. Defendants move to dismiss for lack of subject matter jurisdiction or, in the alternative, for summary judgment.
III. Analysis
A. Subject Matter Jurisdiction
1. Applicable Standards
The standards to be applied in assessing a motion to dismiss for lack of subject matter jurisdiction have been set forth by the Honorable Denise L. Cote, United States District Judge, inCromer Fin. Ltd, v. Berger, 137 F. Supp.2d 452, 467 (S.D.N.Y. 2001):
In assessing a motion to dismiss for lack of subject matter jurisdiction, a court must "accept as true all material factual allegations in the complaint," Shipping Fin. Serv. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)), but refrain from "drawing from the pleadings inferences favorable to the party asserting [jurisdiction]." Id. (citing Norton v. Larney, 266 U.S. 511, 515, 45 S.Ct. 145, 69 L.Ed. 413 (1925)). Courts evaluating Rule 12(b)(1) motions "may resolve the disputed jurisdictional fact issues by reference to evidence outside the pleadings, such as affidavits." Zappia Middle East Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000). Where jurisdiction is "so intertwined with the merits that its resolution depends on the resolution of the merits," the court should use the standard "applicable to a motion for summary judgment" and dismiss only where "no triable issues of fact" exist. London v. Polishook, 189 F.3d 196, 198-99 (2d Cir. 1999) (citation omitted); see also Europe and Overseas Commodity Traders, S.A. v. Banque Paribas London, 147 F.3d 118, 121 n. 1 (2d Cir. 1998).See also Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) ("In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court . . . may refer to evidence outside the pleadings. . . . A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists. . . ." (citations omitted)); Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 108 (2d Cir. 1997) (in assessing a motion to dismiss for lack of subject matter jurisdiction, Court is not limited to the allegations of the complaint); S.E.C. v. Princeton Econ. Int'l Ltd., 84 F. Supp.2d 452, 453-54 (S.D.N.Y. 2000).
2. Defendants' Arguments
Defendants contend that the court lacks subject matter jurisdiction over plaintiff's FTCA claim against the United States for assault and battery because plaintiff has failed to exhaust administrative remedies as required by the FTCA. See generally McNeil v. United States, 508 U.S. 106, 113 (1993) (filing of an administrative claim is a jurisdictional prerequisite to FTCA claim); Millares v. United States, 137 F.3d 715, 719 (2d Cir. 1998) (same); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (same).
Defendants' also argue that plaintiff's claims should be dismissed because plaintiff has not complied with the exhaustion requirement promulgated by the Prisoner Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). Because the PLRA's exhaustion requirement is not jurisdictional, Richardson v. Goord, 347 F.3d 431, 434 (2d Cir. 2003), and a failure to exhaust under the PLRA constitutes an affirmative defense, Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir. 1999); Burgess v. Garvin, 01 Civ. 10994 (GEL), 2004 WL 527053 at *4 (S.D.N.Y. Mar. 16, 2004); Arnold v. Goetz, 245 F. Supp.2d 527, 532 (S.D.N.Y. 2003), I consider this argument below in connection with the individual defendants' motion for summary judgment.
In support of their motion, defendants have submitted a declaration from Adam M. Johnson, a Staff Attorney of the Bureau of Prisons ("BOP") assigned to MCC-NY, dated February 13, 2003 ("Johnson Decl."). Mr. Johnson states that the BOP maintains a computerized and paper database of administrative tort claims filed by inmates, that he has searched the database and that as a result of his search he has determined that plaintiff submitted an administrative tort claim on August 1, 2002 and that that claim was denied by the BOP on December 3, 2002 (Johnson Decl. ¶¶ 6-7 and Exhibits H and I thereto).
Title 28, United States Code, Section 2675(a) provides, in pertinent part:
An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant anytime thereafter, be deemed a final denial of the claim for purposes of this section.
Section 2675(a) deprives a federal court of subject matter jurisdiction to entertain an FTCA claim until either six months have elapsed since the filing of the claim or the agency has issued a final denial of the claim. Rodriguez v. United States, 02 Civ. 6974 (SHS), 2003 WL 21961121 at *4 (S.D.N.Y. Aug. 14, 2003); Russo v. Glasser, 279 F. Supp.2d 136, 146 (D. Conn. 2003); Nin v. Lao, 02 Civ. 8308 (JCF), 2003 WL 21018816 at *5 (S.D.N.Y. May 5, 2003); Pentagen Tech. Int'l Ltd, v. United States, 01 Civ. 3078 (SHS), 2002 WL 465308 at *3 (S.D.N.Y. Mar. 26, 2002). If an FTCA action is commenced after the filing of an administrative claim but before either the passage of six months or the issuance of a final denial, the action must be dismissed for lack of subject matter jurisdiction notwithstanding the occurrence of one of these conditions after the commencement of the action. McNeil v. United States, supra, 508 U.S. at 111-13; Hines v. City of New York, 94 Civ. 5109 (JSM), 1996 WL 706877 at *1 (S.D.N.Y. Dec. 9, 1996).
The Court's docket sheet in this matter indicates that the action was commenced on August 15, 2002 — a mere fourteen (14) days after the filing of plaintiff's administrative claim and almost four months before the claim was finally denied. Since plaintiff asserted his FTCA claim before all the conditions set forth in Section 2675(a) were satisfied, the claim must be dismissed for lack of subject matter jurisdiction.
Defendants also argue in their reply brief that plaintiff's FTCA claim should be denied because it seeks compensation for an intentional tort and, by virtue of 28 U.S.C. § 2680(h), the waiver of sovereign immunity set forth in the FTCA does not extend to most intentional torts (Defendants' Reply Memorandum of Law in Further Support of Defendants' motion to Dismiss and/or for Summary Judgment, dated May 7, 2003, at 4-5). Although defendants' argument appears to have merit, I do not consider it because it is raised for the first time in reply and is, therefore, improperly asserted. Riverkeeper, Inc. v. Collis, 359 F.3d 156, 166 n. 11 (2d Cir. 2004); Evangelists v. Ashcroft, 359 F.3d 145, 155 n. 4 (2d Cir. 2004); Knipe v. Skinner, 999 F.2d 708, 710-11 (2d Cir. 1993);AE Products Group. L.P. v. Mainetti USA Inc., 01 Civ. 10820 (RPP), 2004 WL 169741 at *6 (S.D.N.Y. Jan. 27, 2004); Estate of Morris v. Dapolito, 297 F. Supp.2d 680, 689 n. 7 (S.D.N.Y. 2004).
B. The Individual Defendants' Motion for Summary Judgment
1. Summary Judgment Standards
The standards applicable to a motion for summary judgment are well-settled and require only brief review.
The standard applicable to a motion for summary judgment . . . is a familiar one. Summary judgment shall be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). This form of relief is appropriate when, after discovery, the party — here plaintiff — against whom summary judgment is sought, has not shown that evidence of an essential element of her case — one on which she has the burden of proof — exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This form of remedy is inappropriate when the issue to be resolved is both genuine and related to a disputed material fact. An alleged factual dispute regarding immaterial or minor facts between the parties will not defeat an otherwise properly supported motion for summary judgment. See Howard v. Gleason Corp., 901 F.2d 1154, 1159 (2d Cir. 1990). Moreover, the existence of a mere scintilla of evidence in support of nonmovant's position is insufficient to defeat the motion; there must be evidence on which a jury could reasonably find for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
If the movant demonstrates an absence of a genuine issue of material fact, a limited burden of production shifts to the nonmovant, who must "demonstrate more than some metaphysical doubt as to the material facts," and come forward with "specific facts showing that there is a genuine issue for trial." Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993). If the nonmovant fails to meet this burden, summary judgment will be granted against it. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994).Powell v. National Bd. of Med. Exam'rs, Docket No. 02-9385, 2004 WL 739848 at *4 (2d Cir. Apr. 7, 2004). "The party seeking summary judgment has the burden to demonstrate that no genuine issue of material fact exists. . . . In determining whether a genuine issue of material fact exists, a court must examine the evidence in the light most favorable to, and draw all inferences in favor of, the non-movant. . . . Stated more succinctly, `[t]he evidence of the non-movant is to be believed.'"Lucente v. International Bus. Mach. Corp., 310 F.3d 243, 253-54 (2d Cir. 2002) (citations omitted). See also Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003); Hayut v. State Univ. of New York, 352 F.3d 733, 743 (2d Cir. 2003); Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir. 2000); Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999); Hemphill v. Schott, 141 F.3d 412, 415 (2d Cir. 1998);Grady v. Affiliated Cent., Inc., 130 F.3d 553, 559 (2d Cir. 1997).
Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party, in order to defeat the motion, "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party "`must set forth specific facts showing that there is a genuine issue for trial'" in order to avoid summary judgment. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 250 (1986), quoting Fed.R.Civ.P. 56(e).
The individual defendants move for summary judgment on three grounds: (1) plaintiff has failed to exhaust administrative remedies as required by the Prisoner Litigation Reform Act ("PLRA") 42 U.S.C. § 1997e(a); (2) plaintiff has failed to state a claim on which relief can be granted, and (3) the individual defendants are entitled to qualified immunity.
2. PLRA Exhaustion
The PLRA requires that a prisoner seeking to bring a lawsuit under "any . . . Federal Law" must first exhaust all of his administrative remedies. See Marvin v. Goord, 255 F.3d 40, 42 (2d Cir. 2001): Johnson v. Bendheim, 00 Civ. 720 (JSR), 2001 WL 799569 at *4 (S.D.N.Y. July 13, 2001); Grey v. Sparhawk, 99 Civ. 9871 (HB), 2000 WL 815916 at *1 (S.D.N.Y. June 23, 2000).
[The PLRA], which became effective in April 1996, directs inmates complaining about "prison conditions" to avail themselves of institutional grievance procedures before filing their claims in federal court. The statute states in pertinent part:
"No action shall be brought with a [sic] 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). Courts have interpreted the provision to require complete exhaustion in accordance with institutional procedures. See, e.g., Sulton v. Greiner, 2000 WL 1809284 (S.D.N.Y. Dec. 11, 2000) (granting summary judgment where prisoner failed to appeal to the CORC); Petit v. Bender, 2000 WL 303280, at *2-3 (S.D.N.Y. March 22, 2000) (prisoner who only partially complied with the grievance procedures failed to exhaust his administrative remedies.); Santiago v. Meinsen, 89 F. Supp.2d 435 (S.D.N.Y. 2000) (prisoners must challenge the conditions of their confinement through the highest level of available administrative avenues prior to filing suit). This requirement applies even when plaintiffs seek a remedy that cannot be awarded by the administrative body hearing the complaint.Graham v. Cochran, 96 Civ. 6166 (LTS) (RLE), 2002 WL 31132874 at *6 (S.D.N.Y. Sept. 25, 2002). See also Vidal v. Gorr, 02 Civ. 5554 (LAK), 2003 WL 43354 at *1 (S.D.N.Y. Jan. 6, 2003); Beatty v. Goord, 210 F. Supp.2d 250, 252-53 (S.D.N.Y. 2000). The exhaustion requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). The exhaustion requirement does not, however, apply where there is no grievance procedure available to address the subject matter of a prisoner's complaint, Mojias v. Johnson, 351 F.3d 606, 609 (2d Cir. 2003); Snider v. Melindez, 199 F.3d 108, 113 n. 2 (2d Cir. 1999).
A failure to exhaust may be excused where
(1) an inmate was led to believe by prison officials that his alleged incident was not a "grievance matter" and assured that his claims were otherwise investigated. . . . (2) an inmate makes a "reasonable attempt" to exhaust his administrative remedies, especially where it is alleged that corrections officers failed to file or otherwise impeded or prevented his efforts, . . . and (3) the state's time to respond to the grievance has expired. . . .O'Connor v. Featherston, 01 Civ. 3251 (HB), 2002 WL 818085 at *2 (S.D.N.Y. Apr. 29, 2002); accord Petit v. Bender, 99 Civ. 0969 (SHS), 2003 WL 22743485 at *6 (S.D.N.Y. Nov. 19, 2003). See also Arnold v. Goetz, supra, 245 F. Supp.2d at 537 ("In essence, prison officials cannot have it both ways — they cannot obstruct an inmate's pursuit of administrative exhaustion on the one hand and then claim the inmate did not properly exhaust these remedies on the other. ")
The Federal Bureau of Prisons ("BOP") has a four-step procedure for the resolution of prisoner grievances.
The Bureau of Prisons ("BOP") has established a four-step administrative procedure by which "inmates may seek formal review of an issue which relates to any aspect of their confinement . . . if less formal procedures have not resolved the matter." 28 C.F.R. § 542.10 (1998). . . . The regulations require that inmates first seek informal resolution of their complaints. See id. at § 542.13. If the complaint is not resolved informally, the prisoner may then submit a formal written request, on a designated form, to the facility's warden. See id. at § 542. 14(a).
The deadline for completion of informal review or filing of a formal complaint is twenty days from the event giving rise to the grievance. See id. This time period may be extended " [w] here the inmate demonstrates a valid reason for delay." See id. at § 542. 14(b). If an inmate's formal request is denied, the inmate has twenty days in which to appeal the decision to the appropriate BOP Regional Director, again using a particular form designated by BOP. See id. at S 542. 15(a). Upon an adverse determination by the Regional Director, the inmate has thirty days in which to appeal to the BOP General Counsel. See id.Punches v. Reish, 97 Civ. 7611 (LBS), 1998 WL 695904 at *2 (S.D.N.Y. Oct. 5, 1998); accord Joost v. Menifee, 03 Civ. 1608 (DLC), 2003 WL 22977499 at *2 (S.D.N.Y. Dec. 19, 2003); Paulino v. Garcia, 02 Civ. 209 (LAP), 2003 WL 21939703 at *2 (S.D.N.Y. Aug. 12, 2003); Hylton v. Federal Bureau of Prisons, CV 00-5747 (RR), 2002 WL 720605 at *2 (E.D.N.Y. Mar. 11, 2002).
In addition, where an inmate believes that filing a grievance at the facility in which he is incarcerated may result in retaliation, the regulations provide a mechanism by which the inmate can commence the grievance procedure at the Regional Level:
(d) Exceptions to initial filing at institution —
(1) Sensitive Issues. If the inmate reasonably believes the issue is sensitive and the inmate's safety or well-being would be placed in danger if the Request became known at the institution, the inmate may submit the Request directly to the appropriate Regional Director. The inmate shall clearly mark "Sensitive" upon the Request and explain, in writing, the reason for not submitting the Request at the institution. If the Regional Administrative Remedy Coordinator agrees that the Request is sensitive, the Request shall be accepted. Otherwise, the Request will not be accepted, and the inmate shall be advised in writing of that determination, without a return of the Request. The inmate may pursue the matter by submitting an Administrative Remedy Request locally to the Warden. The Warden shall allow a reasonable extension of time for such a resubmission.28 C.F.R. § 542.14(d).
An inmate is entitled to a response to a grievance filed at the institutional level within 20 days, a response to a grievance filed with a BOP Regional Director within 30 days and a response to a grievance filed with General Counsel within 40 days. These time limits are subject to limited extensions, and an inmate must be given notice of any extension. The BOP's failure to respond to a grievance within the specified time period constitutes a denial of the grievance and permits the inmate to appeal the decision to the next highest level. 28 C.F.R. § 542.18.
The affidavits submitted in connection with the present motion indicate that plaintiff took the following steps to grieve the events of June 14, 2002.
06-19-02 Plaintiff wrote letters to the Warden of MCC-NY, "corrections lieutenants" and his counselor concerning the events of June 14, 2002. Petitioner received only an oral response from "corrections lieutenants" that they did not know what was going on and that the matter had been referred to an outside agency (Declaration of Plaintiff in Opposition to Defendants' Motions for Summary Judgment, dated April 3, 2003 ("Williams Decl."), ¶
Unspecified Date Plaintiff advises the warden of MCC-NY and others that he wishes to file a grievance. Plaintiff is told by unidentified individuals that "the matter ha[s] been referred to an `outside agency,' [and] a grievance was not appropriate at this time." Plaintiff was advised to delay filing his grievance pending an interview by an investigator. That interview never occurred (Williams Decl. ¶ 10(iii)).
07-12-02 Plaintiff files an informal grievance with the warden of the Metropolitan Detention Center ("MDC-NY"), to which he was transferred after the events of June 12, 2002 (Williams Decl. ¶ 10(iii) and Ex. 5 thereto).
07-29-02 Plaintiff receives form BP-8 (informal grievance form) and files it (apparently at MDC-NY) the same day. Petitioner receives no response, but is orally informed that grievance has been lost and that he should file a formal grievance form, BP-9. Plaintiff claims he was not provided with a BP-9 until August 14, 2002 (Williams Decl. ¶ 10(iv)).
08-15-02 Plaintiff files BP-9 with BOP's Regional Director (Williams Decl. ¶ 10(v)). Although the copy retained by plaintiff is marked "Sensitive," the copy in the BOP's file contains no such designation (Compare Williams Decl. Ex. 7 with Johnson Decl. Ex. F).
08-24-02 Plaintiff receives the following response of the Regional Director to the grievance filed on August 15, 2002:
FOR THE REASONS LISTED BELOW, THIS REGIONAL APPEAL IS BEING REJECTED AND RETURNED TO YOU. YOU SHOULD INCLUDE A COPY OF THIS NOTICE WITH ANY FUTURE CORRESPONDENCE REGARDING THIS REJECTION.
Consistent with the authorities discussed at pages 10-11, above, the chronology set forth in the text resolves all factual disputes in plaintiff's favor and assumes the truth of all statements in plaintiff's affidavit.
* * *
REJECT REASON 1: YOU SUBMITTED YOUR REQUEST OR APPEAL TO THE WRONG LEVEL. YOU SHOULD HAVE FILED AT THE INSTITUTION, REGIONAL OFFICE, OR CENTRAL OFFICE LEVEL.
REJECT REASON 2: YOU MAY ONLY SUBMIT ONE CONTINUATION PAGE, EQUIV. OF ONE LETTER-SIZE (8.5 × 11) PAPER. TEXT ON ONE SIDE. THE TEXT MUST BE LEGIBLE.
(Johnson Decl. Ex. G; Williams Decl. ¶ 10(vii) and Ex. 9 thereto (upper case in original)).
08-25-02 Plaintiff sends revised, one page grievance to BOP's Regional Director. Plaintiff never received response (Williams Decl. ¶ 10(vii)). The BOP has no record of this grievance (Johnson Decl. ¶ 5).
Even if I make the generous assumptions that (1) the representations that the events of June 14, 2002 had been referred to an outside agency and that the investigation by that agency made filing a grievance inappropriate prevented plaintiff from filing a grievance within the twenty-day time limit prescribed by the BOP's regulations, 28 C.F.R. § 542.14.(a), and (2) plaintiff's failure to label his first filing with the Regional Administrator as "Sensitive" is excusable, plaintiff's attempts to exhaust the BOP's grievance procedures was unquestionably incomplete because he never took an appeal to the final, "General Counsel" level. The PLRA requires that an inmate exhaust all available administrative appeals before commencing an action. Flanagan v. Maly, 99 Civ. 12336 (GEL), 2002 WL 122921 at *2 (S.D.N.Y. Jan. 29, 2002) ("To comply with 1997a(e), a prisoner must `exhaust[ ]' his administrative remedies, meaning that he must pursue his challenge to the conditions in question through the highest level of administrative review prior to filing his suit.");accord Khalid v. Reda, 00 Civ. 7691 (LAK)(GWG), 2003 WL 42145 at *3 (S.D.N.Y. Jan. 23, 2003) (Report Recommendation); Mack v. Artuz, 01 Civ. 11832 (JSR)(GWG), 2002 WL 31845087 — at *4 (S.D.N.Y. Dec. 19, 2002) (Report Recommendation); see also Arce v. Keane, 01 Civ. 2648 (BSJ), 2004 WL 439428 at *3 (S.D.N.Y. Mar. 9, 2004); Williams v. Cooney, 01 Civ. 4623 (RCC), 2004 WL 434600 at *3 (S.D.N.Y. Mar. 8, 2004); Singleton v. Perilli, 03 Civ. 2271 (DC), 2004 WL 74238 at *2 (S.D.N.Y. Jan. 16, 2004) (collecting authorities); Thomas v. New York State Dep't of Corr. Servs., 00 Civ. 7163 (NRB), 2003 WL 22671540 at *3 n. 5 (S.D.N.Y. Nov. 10, 2003); McNair v. Jones, 01 Civ. 3253 (RCC), 2003 WL 22097730 at *2 (S.D.N.Y. Sep. 10, 2003); Morgan v: Maricopa Co., 259 F. Supp.2d 985, 990 n. 13 (D. Ariz. 2003).
There appears to be a curious inconsistency between the BOP's regulations and its forms. As set forth in the passage quoted on page 15, 28 C.F.R. § 542.14 (d) permits an inmate to file his initial grievance with the Regional Director if the grievance is labeled "Sensitive" and sets forth a valid reason for treating the grievance as such. The instructions on the back of Form BP-9, advise inmates that a BP-9 filed with the Regional Director must set forth a valid reason for bypassing review at the institutional level, but omit any reference to a requirement that the submission be labeled as "Sensitive" (Williams Decl. Ex. 8). Since the labeling requirement is necessary to alert BOP staff that an inmate is attempting to invoke the procedure set forth in Section 542.14(d) (Reply Declaration of Adam M. Johnson, dated May 7, 2003, ¶ 3), the omission of a reference to the labeling requirement from the instructions printed on Form BP-9, while setting forth the regulation's other requirements, would tend to mislead inmates.
The fact that plaintiff never received a response to his second filing with the BOP's Regional Director did not prevent him from taking an appeal to the General Counsel level. As noted above, the Regional Director's failure to respond to the grievance within thirty days operated as a rejection of the grievance and triggered plaintiff's right to take an appeal to the General Counsel level. 28 C.F.R. § 542.18. Since plaintiff failed to pursue the final administrative remedy available to him, he has not complied with the PLRA's exhaustion requirement.
IV. Conclusion
For all the foregoing reasons, the United States' motion to dismiss the claims against it for lack of subject matter jurisdiction is granted in all respects. The motion of the individual defendants for summary judgment dismissing all claims against them is also granted because plaintiff has failed to comply with the PLRA's exhaustion requirement. Plaintiff's claim against the individual defendants is dismissed without prejudice. Because it is unnecessary to do so, I do not address the individual defendants' alternative arguments that (1) the Second Amended Complaint fails to state a claim on which relief can be granted, and (2) they are entitled to summary judgment on the basis of qualified immunity.
The Clerk of the Court is directed to enter judgment closing this case.
SO ORDERED.