CHARLES W. BRADY, Plaintiff, vs. DR. ATTYGALA, PETER REMBULAT, C/O MADRIGAL, and DR. DECASTRO, Defendants.



NO. CV 01-4549-CAS (SGL)



UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA



196 F. Supp. 2d 1016; 2002 U.S. Dist. LEXIS 7748



April 17, 2002, Decided

April 17, 2002, Filed; April 19, 2002, Entered







DISPOSITION: [**1] Plaintiff's motion for leave to file amended complaint granted.







COUNSEL: CHARLES W BRADY, plaintiff, Pro se, Represa, CA.


For ATTYGALA, Dr., P REMBULAT, ERNIE ROE, defendants: Susan E Myster, CAAG, Office of Attorney General of California, San Diego, CA.



JUDGES: STEPHEN G. LARSON, UNITED STATES MAGISTRATE JUDGE.



OPINIONBY: STEPHEN G. LARSON



OPINION: [*1017]

AMENDED ORDER RE: EXHAUSTION OF ADMINISTRATIVE REMEDIES n1



n1 The Court's opinion filed March 14, 2002, is amended to take into consideration the arguments raised by defendants in their motion for reconsideration filed on April 2, 2002.


Charles W. Brady has filed a civil rights complaint against various prison officials, claiming that while he was incarcerated at Lancaster State Prison correctional officers allowed another inmate to injure him and that prison doctors were deliberately indifferent to his medical needs in how they treated a laceration under his right eye he suffered during the fight with the other inmate. Defendants have asserted that, despite representations in his [**2] complaint, Brady failed to exhaust the administrative remedies provided by the California Department of Corrections prior to filing this action.

BACKGROUND

Brady alleges in his complaint that on May 3, 1999, he informed prison officials that he did not want to have Darren Coleman as his cell mate because Coleman was a "gang member"; it turns out that Coleman and Brady did not get along on account of Coleman being a Muslim. (Compl. Ex. A at 2; Am. Compl. P 1). On May 7, 1999, while directing inmates back to their respective cells after the morning meal, Correctional Officer Peter Rembulat observed Coleman standing in front of another inmate's cell. (Compl. Ex. A at 1). Officer Rembulat ordered Coleman back to his assigned cell. (Compl. Ex. A at 1). Coleman, allegedly in plain view of Officer Rembulat, grabbed a broom as he headed back toward his cell and broke it over his knee into two pieces. (Am. Compl. P 2; Compl. Ex. A at 1). Brady was already in the cell when Coleman arrived at the door.

Correctional Officer Madrigal then purportedly opened the cell door for Coleman to enter even though he observed him carrying the broken broom sticks. (Am. Compl. P 3). At no time did [**3] Officer Rembulat seek to stop Coleman before he reentered his assigned cell or to confiscate the broom sticks. (Am. Compl. P 2). When he entered the cell, Coleman swung one of the broom sticks at Brady, hitting him under the right eye. Upon seeing Coleman make a striking motion with the broom handle, Officer Rembulat quickly activated his personal alarm device and ordered Coleman to get down on the ground. (Compl. Ex. A at 1-2; Am. Compl. P 4). Coleman was later reassigned to a different cell in another section of the prison. (Compl. Ex. A at 2).

Brady was initially seen by Mary Hoag, a medical assistant, who determined that Brady had suffered a one-inch laceration below his right eye. (Compl. Ex. A at 2). Brady complained of dizziness, blurred vision, and pain in his eye while he was being treated by the medical assistant. (Compl. Ex. A at 7). Hoag determined that Brady required further medical treatment and sent him to the prison infirmary, where he was treated by Dr. Decastro. (Compl. Ex. A at 2; Am. Compl. P 5). Dr. Decastro applied two sutures to Brady's wound and gave him some Motrin for the pain. (Am. Compl. P 5; Compl. Ex. C [*1018] at 3). Brady alleges that at no time during this [**4] examination did Dr. Decastro provide any further treatment, such as performing a visual examination of the back of his eye or ordering that a x-ray be taken. (Am. Compl. P 5). When the sutures were later removed by Dr. Attygala, Brady's right eye was still swollen and his pupil was "sluggish to light." (Compl. Ex. C at 4-5). He complained to Dr. Attygala that he could no longer see out of his right eye and that he continued to feel a "sharp and throbbing" pain in his eye. (Am. Compl. P 6-7; Compl. Ex. C at 4-5, 9).

Over the course of the next month Brady repeatedly demanded to be seen by an outside eye specialist. (Compl. Ex. B). When his pleas allegedly went unheeded, Brady initiated a grievance requesting that he be seen by a eye specialist. On June 24, 1999, Brady was seen by an outside ophthalmologist, who purportedly informed him that his "eye was infected," that it "could not be saved," and that "his vision could not be restored." (Am. Compl. P 8; Compl. Ex. C at 10; Pl's Notice of Administrative Remedies, Ex. A-2). Brady then filed this suit.

In the process of screening Brady's complaint, see 42 U.S.C. § 1997e(c), the Court noted that, despite [**5] specific requirements set forth in the pre-approved civil rights complaint form prepared for inmates, Brady had failed to attach "copies of papers related to the grievance procedure." Given the discrepancies between the parties contentions regarding exhaustion and Brady's failure to produce documentation related to the exhaustion of administrative remedies, the Court issued an order on November 2, 2001, requiring Brady to file a document containing "copies of papers related to the grievance procedure and the exhaustion of administrative remedies."

Brady in response submitted a pleading captioned "Notice of Administrative Remedies." Brady asserts that after the sutures were removed several times he informally requested to be seen by an ophthalmologist, but that each time his request was either rebuffed or ignored by the prison medical staff. (Am. Compl. P 7). He then filed a formal grievance on a CDC 602 inmate appeal form contesting the treatment he received by the prison doctors and requesting that he be seen by an outside eye specialist. (Pl's Notice of Administrative Remedies at 2). The inmate appeal form was eventually forwarded to the chief medical officer for a second level [**6] response on June 24, 1999, the same day Brady was seen by an ophthalmologist. (Pl's Notice of Administrative Remedies, Ex. A-1). Brady submitted copies of his appeal form and the response thereto by the appeals coordinator to substantiate his assertion. (Notice, Ex. A1 & A2). The health care manager who conducted the second level response, Dr. Raj Sethi, granted Brady's appeal on July 2, 1999. (Pl's Notice of Administrative Remedies, Ex. A-2).

Under the section "Appeal Issue," Dr. Sethi wrote that the substance of Brady's grievance was a request that he "be taken out to the [eye] specialist." (Pl's Notice of Administrative Remedies, Ex. A-2). Dr. Sethi then noted under the section "Appeal Response" that on June 24, 1999, Brady was in fact seen by an outside ophthalmologist. (Pl's Notice of Administrative Remedies, Ex. A-2). This prompted Dr. Sethi's decision to grant Brady's appeal: "This appeal is GRANTED in that you have been seen by a 'specialist.'" (Pl's Notice of Administrative Remedies, Ex. A-2). Brady never appealed this decision to the director for the Department of Corrections, the final arbiter of prison administrative appeals. (Decl. Linda Rianda P 3).

ANALYSIS [**7]

The Prison Litigation Reform Act of 1995 amended 42 U.S.C. § 1997e(a) to provide that:

[*1019]

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.

There is no doubt in this case that Brady's complaint must comply with the exhaustion requirement set forth in § 1997e(a). The essence of his complaint concerns the manner in which prison officials treated his ailments or failed to protect him from fellow inmates while he was confined in prison. Such assertions necessarily touch upon "prison conditions" as they concern everyday aspects of an inmate's life in prison. See Porter v. Nussle, 122 S. Ct. 983, 992 (2002) ("The PLRA's exhaustion requirement applies to all inmate suits about prison life"); White v. Fauver, 19 F. Supp.2d 305, 313-314 (D. N.J. 1998) (noting that § 1997e(a)'s reference to "prison conditions" includes "the conditions of confinement or the effects of actions by government officials on the lives of [**8] persons confined in prison").

The real question presented is whether the granting of Brady's appeal at the second administrative level was enough to exhaust his administrative remedies when there still remained a possible appeal to the director for the Department of Corrections.

Before delving into the legal issues, some background on the operation of the prison grievance process is required. The State of California provides its inmates the right to file an administrative grievance with "any department decision, action, condition, or policy which they can demonstrate as having an adverse effect upon their welfare." CAL. CODE REGS. tit. 15, § 3084.1(a). The grievance system, however, allows for the award of prospective relief, but not monetary damages (aside from a nominal amount for property damage). See Rumbles v. Hill, 182 F.3d 1064, 1068 (9th Cir. 1999). The Department of Corrections' grievance process is comprised of a four-tiered hierarchy. See CAL. CODE REGS. tit. 15, § 3084.5.

In order to exhaust their administrative remedies, inmates must first attempt to informally resolve the problem with the "staff involved in the action or decision being appealed. [**9] " CAL. CODE REGS. tit. 15, § 3084.5(b). If unsuccessful there, inmates must then submit a formal appeal on an approved inmate appeal form to the correctional institution's appeals coordinator, id., and if unsuccessful there, submit another formal appeal for a second level of review conducted by the warden or his or her designee. See CAL. CODE REGS. tit. 15, § § 3084.5(c) & 3084.5(e)(1). If the warden rejects the appeal, prisoners must then submit a formal appeal to the director for the California Department of Corrections. See CAL. CODE REGS. tit. 15, § 3084.5(e)(2). The director's decision "shall be final and exhausts all administrative remedies available in the Department [of Corrections]." CALIFORNIA DEPARTMENT OF CORRECTIONS OPERATIONS MANUAL § 54100.11.

Defendants argue that Brady's failure to take an appeal to the director after his appeal was granted at the second level mandates a finding that he has failed to exhaust his administrative remedies. According to defendants, section 1997e(a)'s exhaustion requirement carries with it no exceptions, even when an inmate's grievance has been granted at a lower level in the administrative process. Such a hard line approach [**10] they maintain is mandated by the Supreme Court's construction of the statutory language in Booth v. Churner, 121 S. Ct. 1819 (2001).

The Court was presented in Booth with the question of whether the statute's call for an inmate to exhaust "such administrative [*1020] remedies as are available" applied when the inmate sought only monetary damages but the prison administrative process, although providing some sort of relief, did not allow for the awarding of damages. Id. at 1821. The Court held that, under such circumstances, the statute required the inmate to pursue the prison administrative process "regardless of the fit between a prisoner's prayer for relief and the administrative remedies possible." Id. at 1824.

In the course of reaching its conclusion, the Court noted that it would "not read futility or other exceptions" into section 1997e(a)'s exhaustion requirement. Id. at 1825 n.6. The Court went on to hold that "an inmate must exhaust irrespective of the forms of relief sought and offered through administrative avenues." Id. It is these statements in the Court's opinion that defendants argue require an inmate [**11] to continue to appeal his grievance even after winning at a lower level in the administrative process. The problem is that these statements say nothing about when an inmate is considered to have actually exhausted his administrative remedies. Instead, the statements merely indicate that an inmate must exhaust his remedies regardless of the relief he seeks or the relief offered by the prison grievance system. See id. at 1823 (explaining that the phrase "such administrative remedies as are available" requires an inmate to exhaust whatever grievance procedures are available, "whether or not the possible responses cover the specific relief the prisoner demands" in his federal complaint). One must look to another section of the Court's opinion for an answer to the question of when a inmate is considered to have exhausted his remedies.

The Court noted at the outset of its opinion that its analysis was premised upon the assumption "that some redress for a wrong is presupposed by the statute's requirement of an 'available' 'remedy.'" Id. at 1822. So long as there exists a "possibility of some relief for the action complained of," an available remedy [**12] still exists for the inmate to exhaust. Id. at 1824. To the Court it is the possibility of relief that is critical in determining when an inmate has exhausted his administrative remedies. "Without the possibility of some relief, the administrative officers would presumably have no authority to act on the subject of the complaint, leaving the inmate with nothing to exhaust." Id. at 1822 n.4. Further pursuit of an administrative appeal is therefore not required when no relief whatsoever is left available for the inmate to obtain through the prison administrative process. At that point, the inmate has "nothing [left] to exhaust." Id.

Other courts have also recognized that inmates do not need to continue to pursue administrative remedies when there is nothing left to obtain from the administrative process. The Seventh Circuit, in a hypothetical similar to the facts in this case, noted:


It is possible to imagine cases in which the harm is done and no further administrative action could supply any "remedy." . . . Suppose the prisoner breaks his leg and claims delay in setting the bone is cruel and unusual punishment. If the injury [**13] has healed by the time suit begins, nothing other than damages could be a "remedy," and if the administrative process cannot provide compensation then there is no administrative remedy to exhaust. Perez . . . alleges that his medical problems are ongoing and that his treatment remains deficient, so Wisconsin can provide him with some "remedy" whether or not its administrative process offers damages.


Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532, 538 (7th Cir. 1999). n2



n2 The Seventh Circuit also required in that case that inmates exhaust their administrative remedies even when the grievance process did not provide for monetary relief well before the Supreme Court required the same in Booth. See 182 F.3d at 537.


[*1021]

Decisions after Booth have reached similar conclusions. In one case, an inmate filed a suit alleging that a correctional officer failed to protect him from a cell mate who beat and sexually assaulted him. See Nitz v. Correctional Officer French, 2001 U.S. Dist. LEXIS 9201, 2001 WL 747445 [**14] (N.D. Ill. July 2, 2001). The inmate filed an administrative grievance seeking relief from the threatening situation and was later transferred to another prison while his grievance was pending. Id. at *3, 2001 U.S. Dist. LEXIS 9201. The inmate never pursued his grievance after his prison transfer. Id. The defendant sought to dismiss the inmate's civil rights complaint, arguing that because the inmate had not pursued his grievance to the highest possible level of the administrative process he had not exhausted his administrative remedies. The court rejected that argument, noting that once the inmate was transferred to another prison "he had received all the 'relief' that administrative procedures could give." Id. The court noted that to require otherwise would lead to absurd results. "It would be a strange rule that an inmate who has received all he expects or reasonably can expect must nevertheless continue to appeal, even when there is nothing to appeal." Id.

In another case, an inmate filed a suit alleging that the prison medical staff were deliberately indifferent in treating and providing him information about hepatitis C. See Gomez v. Winslow, 177 F. Supp.2d 977 (N.D. Cal. 2001). [**15] He filed a grievance seeking not only interferon treatment for his hepatitis but also medical information on how the interferon would affect his other medical conditions. Id. at 979. Just prior to his grievance being heard at the second formal level of review, the inmate was provided the medical information that he requested and soon thereafter began receiving interferon treatments. Id. at 979-980. This change in conditions prompted the prison appeals coordinator to partially grant the inmate's appeal. The inmate did not pursue his appeal after this partial grant. Id. at 980. The defendants later filed a motion to dismiss the complaint, asserting that the inmate's failure to appeal his grievance to the director for the Department of Corrections (that is, to the third, and last, formal level of review) demonstrated that he had not exhausted his administrative remedies. The court rejected this argument, noting that "because [the inmate] had, in essence, 'won' his inmate appeal, it would be unreasonable to expect him to appeal that victory before he is allowed to file suit." Id. at 985.

The facts in this case are not [**16] unlike those in Nitz and Gomez. Brady, like the inmates in Nitz and Gomez, sought through his grievance that certain actions be taken by prison officials, namely, that he be seen by an outside eye specialist. During the pendency of his grievance, Brady similarly received the action he sought. This action on the prison officials part in turn short-circuited the consideration of his grievance. Just as in Gomez, Brady's appeal was granted at a lower level of the administrative process precisely because he had received the medical treatment he requested in his grievance. When Brady's grievance was "granted" at the second level of review, there was little else he could seek or expect from the prison administrative process; he had "won" his appeal and had been granted all the relief he sought in his grievance. Nowhere have the defendants articulated what other types of relief were still available from the administrative process for Brady to pursue after his appeal was granted. Nor does it appear that any in fact do exist. California's grievance [*1022] process only requires an inmate to appeal to the director if their "appeal [is] not resolved at [the] second level." CAL. CODE REGS. tit. 15, § 3084.5(d). [**17] Because Brady's appeal was granted at the second level, the Department of Corrections' own regulations would appear to indicate that further exhaustion on his part was not required. "Without the possibility of some relief" remaining available, Booth mandates a finding that Brady has exhausted his administrative remedies. 121 S. Ct. at 1822 n.4.

The defendants, however, contend that other courts have required such exhaustion under similar circumstances. In particular, they direct this Court's attention to an unpublished decision from the Northern District of California, Long v. Gomez, No. C 98-02679 SBA (N.D. Ca. Jan. 3, 2002), for support. According to the defendants this unpublished decision shows that "the Northern District has addressed this issue . . . ." (Def's Mot. Recons. at 5). Apparently, defendants are unaware of the district court's decision in Gomez v. Winslow, an earlier, published decision from the same district that is to the contrary. Be that as it may, the Court does not find the decision in Long particularly persuasive.

In that case, the inmate requested in his grievance for an investigation [**18] into him being shot by a prison guard. This request was later granted at a lower level in the administrative process. The inmate was apparently satisfied with this result and did not further pursue his appeal. This lack of action prompted the court to find that the inmate had not exhausted his administrative remedies. The court noted at the outset that, "so long as the administrative system can provide some redress, the plaintiff must pursue his claims through that system until they can be pursued no further." Id, slip op. at 12. From this the Court then leaped to the conclusion that the inmate did not exhaust his remedies because "he did not appeal to the final administrative level." Id. Nowhere does the court explain why such a conclusion is mandated by the inmate's simple failure to appeal after winning at a lower administrative level. The court does not identify what "redress," if any, still remained for the prison to provide after it agreed to investigate the shooting. Such an omission is particularly striking given that the court itself stated that exhaustion is only required so long as "some redress" can be provided. The court did, however, opine that were it to [**19] hold otherwise it would circumvent the policies underlying § 1997e(a)'s exhaustion requirement. This argument simply does not hold up under scrutiny.

The Supreme Court noted that one of the purposes for the exhaustion requirement was to force an inmate to go through the administrative process so as to give prison officials an opportunity to take corrective action that would keep the inmate from filing a lawsuit. See Porter, 122 S. Ct. at 988 ("In some instances, corrective action taken in response to an inmate's grievance might improve prison administration and satisfy the inmate, thereby obviating the need for litigation"); Booth, 121 S. Ct. at 1823 ("exhaustion in these circumstances would produce administrative results that would satisfy at least some inmates who start out asking for nothing but money, since the very fact of being heard and prompting administrative change can mollify passions even when nothing ends up in the pocket"). If an inmate was forced to continue pursuing an appeal even after prison officials took the corrective action sought in his grievance, there arises the very real possibility of negative action being taken on the [**20] inmate's appeal at a later stage in the administrative process. If, for example, the inmate in Nitz continued to pursue his appeal, it is plausible that the earlier decision [*1023] to transfer him to another prison might have been reversed and the inmate placed back in the cell with the inmate who beat him. The court in Long in fact recognized such a possibility: "Appealing a satisfactory response in general risks the possibility that the higher levels of review will reverse the lower level response; thus leaving the [inmate] in a worse position than had he not appealed." Long, No. C 98-02679, slip op. at 12.

Construing § 1997e(a) to mandate that an inmate continue to appeal even after obtaining all the relief he can extract from the prison administrative process therefore undercuts one of the very policies underlying it: To allow prison officials an opportunity to take corrective action so as to satisfy the inmate and perhaps prevent the filing of a lawsuit. Continuing to appeal even after winning at a lower administrative level will not give the inmate anymore than what he already has obtained. Instead it will only provide the opportunity that the corrective action taken [**21] earlier (which may have kept the inmate from later filing suit) will later be undone.

Instead, both common sense and the Supreme Court's decision in Booth require a finding that Brady exhausted his administrative remedies after his appeal was "granted" at a lower level in the administrative process.

Since filing his Notice, Brady has filed a copy of his proposed amended complaint and a motion for leave to file said complaint. The Court hereby GRANTS Brady's motion for leave to file his amended complaint.


Date: 4/17/02

STEPHEN G. LARSON

UNITED STATES MAGISTRATE JUDGE

JERRY PEREZ, Plaintiffs, - against - M. BLOT, P. FRAZIER, and J. WHITE, in their individual capacities, Defendants.



01 Civ. 7277 (WK)



UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK



195 F. Supp. 2d 539; 2002 U.S. Dist. LEXIS 6353



April 10, 2002, Decided

April 11, 2002, Filed







DISPOSITION: [**1] Plaintiff's discovery request GRANTED.









COUNSEL: For Plaintiffs: Joel Landau, Prisoners' Legal Services of New York, Albany, NY.


For Defendants: Valerie Singleton, Office of the Attorney General, New York, NY.



JUDGES: WHITMAN KNAPP, SENIOR U.S.D.J.



OPINIONBY: WHITMAN KNAPP



OPINION:

[*540] OPINION & ORDER


WHITMAN KNAPP, SENIOR DISTRICT JUDGE

Plaintiff Jerry Perez ("Plaintiff") is currently an inmate at the Auburn Correctional Facility. Plaintiff brought this excessive force action pursuant to 42 U.S.C. § 1983 in order to recover damages for an alleged assault he suffered at the hands of three correctional officers, Defendants M. Blot ("Blot"), P. Frazier ("Frazier"), and J. White ("White") (collectively "Defendants"), while he was an inmate at the Sing Sing Correctional Facility.

Plaintiff has sought discovery as to, inter alia, the various grievance efforts, both formal and informal, which he pursued to exhaust his administrative remedies in regards to that assault as well as any investigations which may have resulted therefrom. However, Defendants refuse to provide discovery beyond that which relates to Plaintiff's formal grievance efforts pursuant to the procedure [**2] enumerated in 7 N.Y. COMP. CODES R. & R., tit. 7, § 701, et seq., until we first address their forthcoming motion to dismiss Plaintiff's action on the grounds that he failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a).

Since Plaintiff contends that the discovery he seeks is directly relevant to the issue of whether or not he sufficiently exhausted his administrative remedies (and therefore to Defendants' forthcoming motion), he requests that, before considering the motion to dismiss, we order Defendants (a) to provide him with all documents related to an investigation purportedly conducted by the Inspector General's Office of the Department of Correctional Services ("DOCS") in response to Plaintiff's alleged informal complaints and (b) to allow him to depose DOCS officials with respect to whether Plaintiff's informal complaints satisfied the essential functions of a formal administrative grievance. For the reasons that follow, we hereby grant Plaintiff's request.

BACKGROUND

In May 2000, Plaintiff was an inmate at the Sing Sing Correctional Facility ("Sing Sing"). Compl. PP [**3] 3, 6. On May 19, 2000, he was moved from the area of the correctional facility which houses the general prison population to a Special Housing Unit in the "HBC." Compl. P 6.

While processing him for admission into the HBC, Blot allegedly asked Plaintiff why he was being admitted to that unit. Compl. P 8. When Plaintiff informed him that he had been accused of assaulting another inmate, Blot inquired as to whether Plaintiff knew how inmates who assaulted other inmates were treated at Sing Sing. Id. After Plaintiff failed to respond to this inquiry, Blot purportedly slapped Plaintiff with an open hand across the face without provocation. Compl. P 9. Immediately thereafter, all three Defendants allegedly "inflicted an unprovoked, wanton and malicious assault upon the plaintiff" by throwing him to the ground, hitting him with a baton, punching him, kicking him, and otherwise physically abusing him. Compl. PP 10-11.

As a result of this alleged assault, Plaintiff suffered a fracture of the left medial orbital near his eye as well as multiple contusions, abrasions, swelling and other injuries about his head and body. Compl. P 14. He also purportedly suffered emotional distress as a [**4] result of the assault. Id.

Plaintiff contends that this assault violated his Eighth and Fourteenth Amendment rights under the United States Constitution. Consequently, on August 3, 2001, he filed this action pursuant to 42 U.S.C. § 1983 in order to recover damages for the deprivation of his constitutional rights.

[*541] Defendants have indicated that they shortly intend to move to dismiss Plaintiff's action on the grounds that he failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act. In his Complaint, Plaintiff never discussed whether he took any efforts to exhaust his administrative remedies. However, while Plaintiff's counsel is unsure as to whether Plaintiff ever filed a formal grievance about the assault, Plaintiff's counsel has apparently been informed that Plaintiff complained about the incident less formally to numerous correctional officials, both verbally and in writing, and that an exhaustive internal investigation was conducted by the Inspector General's Office of the Department of Correctional Services ("DOCS") in response to his complaints. See March 1, 2002 Landau Letter at 1; April 2, 2002 Landau [**5] Letter at 2. As a result of that investigation, the Inspector General's Office purportedly concluded that some or all of the defendants in this federal action had used excessive force and allegedly referred the matter for further investigation to the New York State Police Bureau of Criminal Investigation. See March 1, 2002 Landau Letter at 1-2; April 2, 2002 Landau Letter at 1. Upon further investigation, the state police thereafter allegedly referred the matter to the Westchester County District Attorney's office for prosecution of the correctional officers. See April 2, 2002 Landau Letter at 1.

Plaintiff contends that these complaints and the ensuing investigation purportedly conducted by the Inspector General's Office satisfied the exhaustion requirement imposed by the Prison Litigation Reform Act regardless of whether or not Plaintiff filed a formal grievance pursuant to the Inmate Grievance Program procedure set forth in 7 N.Y. COMP. CODES R. & R., tit. 7, § 701.7. In order to advance this defense, Plaintiff has sought discovery of, among other things, all documents related to the investigation purportedly conducted by the Inspector General's Office. Plaintiff's counsel [**6] has also indicated that, in response to Defendants' forthcoming motion to dismiss, it may be necessary to depose various DOCS officials to determine whether, in their view, Plaintiff's less formal complaints satisfied the essential functions of a formal administrative grievance.

In sharp contrast, Defendants contend that Plaintiff's less formal complaints and the ensuing investigation conducted by the Inspector General's Office do not satisfy the exhaustion requirement and that, accordingly, they are not pertinent to the issue of whether Plaintiff exhausted the appropriate administrative remedies. Consequently, although they are willing to provide discovery with respect to any efforts which Plaintiff may have made to pursue formal administrative grievances regarding the assault, they are unwilling to provide any further discovery beyond that until we have first addressed their forthcoming motion to dismiss Plaintiff's action (if, indeed, any discovery remains necessary after our decision). As Plaintiff asserts that his complaints and the investigation which supposedly ensued therefrom are directly relevant to the issue of whether he satisfied the exhaustion requirement, Plaintiff [**7] requests that, before considering the forthcoming motion, we order Defendants (a) to provide him with all documents related to the investigation conducted by the Inspector General's Office with respect to the May 19, 2000 assault and (b) to allow him to depose DOCS officials with respect to whether Plaintiff's complaints satisfied the essential functions of a formal administrative grievance.

DISCUSSION

"Ordinarily, plaintiffs pursuing civil rights claims under 42 U.S.C. § 1983 need not exhaust administrative remedies [*542] before filing suit in court." Porter v. Nussle (Feb. 26, 2002) 152 L. Ed. 2d 12, U.S. , 122 S. Ct. 983, 987. However, "Congress, in enacting the Prison Litigation Reform Act of 1995 (Act), Pub. L. No. 104-134, Title VIII, 110 Stat. 1321-66 (1996), carved out an exception to the general rule that exhaustion of state remedies is not a prerequisite to filing suit under 42 U.S.C. § 1983." Neal v. Goord (2d Cir. 2001) 267 F.3d 116, 119.

The Prison Litigation Reform Act ("PLRA") provides that "no action shall be brought with respect to prison conditions under section [**8] 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). Hence, "[a] prisoner must exhaust all available remedies before bringing an action regarding prison conditions." Santiago v. Meinsen (S.D.N.Y. 2000) 89 F. Supp.2d 435, 438. The Supreme Court recently held that this exhaustion requirement applies to 42 U.S.C. § 1983 excessive force claims. See Porter, 122 S. Ct. at 987-992.

"New York provides an elaborate administrative grievance process for prisoners in New York State correctional facilities." Cruz v. Jordan (S.D.N.Y. 1999) 80 F. Supp.2d 109, 117. See also N.Y. CORRECT. LAW § 139; 7 N.Y. COMP. CODES R. & R., tit. 7, § 701, et seq. In Cruz, Judge Hellerstein described in exacting detail the administrative grievance remedies available, pursuant to the Inmate Grievance Program ("IGP") set forth in 7 N.Y. COMP. CODES R. & R., tit. 7, § 701, et seq., to individuals such as Plaintiff who are inmates in New York [**9] State correctional facilities and we need not elaborate on his extensive discussion. See Cruz, 80 F. Supp.2d at 117-118.

Plaintiff's counsel is unsure as to whether Plaintiff ever filed a formal grievance in accordance with the IGP procedure enumerated in 7 N.Y. COMP. CODES R. & R., tit. 7, § 701.7. However, Plaintiff has informed his counsel that he complained about the May 19, 2000 assault less formally to numerous correctional officials, both verbally and in writing, and, according to Plaintiff, the Inspector General's Office of DOCS conducted an exhaustive internal investigation in response to those complaints. As a result of that investigation, the Inspector General's Office concluded that some or all of the named defendants had in fact used excessive force. Thereafter, the Inspector General's Office referred this matter to the New York State Police Bureau of Criminal Investigation, which, upon further investigation, referred the matter to the Westchester County District Attorney's office for prosecution of the officers.

Although Defendants are willing to provide discovery with respect to the more formal grievance efforts which Plaintiff may have pursued [**10] in accordance with the elaborate procedure set forth in 7 N.Y. COMP. CODES R. & R., tit. 7, § 701.1, et seq., they refuse to provide discovery with respect to Plaintiff's less formal complaints to correctional officials about the alleged assault and the ensuing investigation which purportedly resulted therefrom until we first address their forthcoming motion to dismiss. In essence, they contend that such efforts would be insufficient to satisfy the exhaustion requirement imposed by the PLRA and would therefore not be pertinent to the issue of whether Plaintiff exhausted the appropriate administrative remedies.

As Plaintiff's counsel has noted, the relevant administrative process includes both a formal grievance procedure, as enumerated in 7 N.Y. COMP. CODES R. & R., tit. 7, § 701.7, and an expedited, less formal grievance procedure for "harassment" [*543] which is described in 7 N.Y. COMP. CODES R. & R., tit. 7, § 701.11. This latter procedure applies to grievances which arise as a result of "employee misconduct meant to...harm an inmate." See 7 N.Y. COMP. CODES R. & R., tit. 7, § 701.11(a). As Defendants concede, see April 8, 2002 Singleton Letter at 2, an inmate may pursue [**11] a grievance regarding an assault at the hands of correctional officers by following the less formal procedure set forth in Section 701.11. See Cross v. Radomski 2000 U.S. Dist. LEXIS 11892, 2000 WL 1175771 (S.D.N.Y. Aug. 18, 2000) *1-*2. Specifically, in accordance with this expedited procedure, the inmate "should first report such occurrences to the immediate supervisor of that employee [who purportedly committed the misconduct]." 7 N.Y. COMP. CODES R. & R., tit. 7, § 701.11(b)(1). The inmate's "allegations" must then be given a grievance number and recorded in sequence. 7 N.Y. COMP. CODES R. & R., tit. 7, § 701.11(b)(2). Thereafter, the Superintendent or his designee must determine whether the grievance, if true, would represent a bona fide case of harassment. See 7 N.Y. COMP. CODES R. & R., tit. 7, § 701.11(b)(3).

If the Superintendent determines that the grievance does not represent a bona fide case of harassment, then the grievance is submitted to the Inmate Grievance Resolution Committee for resolution in conformance with the IGP process discussed in Section 701.7. See 7 N.Y. COMP. CODES R. & R., tit. 7, § 701.11(b)(3). If, on the other hand, the Superintendent determines [**12] that the grievance does represent a bona fide case of harassment, he is required either to: (i) initiate an in-house investigation by higher ranking supervisory personnel into the allegations contained in the grievance, or (ii) request an investigation by the Inspector General's Office or, if the Superintendent determines that criminal activity is involved, by the New York State Police Bureau of Criminal Investigation. See 7 N.Y. COMP. CODES R. & R., tit. 7, § 701.11(b)(4)(i)-(ii).

Defendants assert that Plaintiff "lodged his grievance directly with the Inspector General" and therefore failed to follow even the expedited procedure discussed above as he purportedly did not submit a "formal grievance at the correctional facility level as contemplated by the provisions of § 701.11." See April 8, 2002 Singleton Letter at 2-3. However, the merit of that contention is unclear at this early stage in the litigation. Although at least one court has determined that an inmate's direct complaints to the Inspector General's office "do not serve to excuse [a] plaintiff from adhering to the available administrative procedures" enumerated in 7 N.Y. COMP. CODES R. & R., tit. 7, § 701.1,et seq., [**13] Grey v. Sparhawk 2000 U.S. Dist. LEXIS 8656, 2000 WL 815916 (S.D.N.Y. June 23, 2000) *2, we have not yet been provided with sufficient information to determine whether Plaintiff actually complained directly to the Inspector General's Office or whether he instead pursued his grievance in accordance with the provisions of Section 701.11 by submitting his allegations to the appropriate correctional authorities.

Indeed, whereas Defendants contend that Plaintiff pursued his grievance solely through the Inspector General's Office, Plaintiff asserts that he also complained to various "correctional officials" regarding the assault. Pursuant to the expedited procedure for allegations of harassment, an inmate need only "report" the purported harassment "to the immediate supervisor of that employee" who supposedly committed the misconduct in order to trigger the expedited grievance process. 7 N.Y. COMP. CODES R. & R., tit. 7, § 701.11(a)(1). Nothing in the relevant regulations indicates that the inmate's "report" must consist of a formal grievance complaint such as that required pursuant [*544] to the normal grievance procedure enumerated in Section 701.7(a)(1). In fact, Section 701.11(b)(1) [**14] states that the inmate's report will not preclude the submission of a formal grievance pursuant to Section 701.7. See 7 N.Y. COMP. CODES R. & R., tit. 7, § 701.11(b)(1). Moreover, where Section 701.7(a)(1) specifically provides that the inmate's complaint must be submitted on Inmate Grievance Complaint Form # 2131 and Section 701.7(a)(1)(i) outlines the specific content which the inmate must include on that form, Section 701.11(b)(2) refers to the requisite report as the inmate's "allegations of misconduct" and does not specify that those allegations should be submitted on a particular form or should discuss particular information. See 7 N.Y. COMP. CODES R. & R., tit. 7, § § 701.7(a)(1), 701.7(a)(1)(i), 701.11(b)(2). In sum, these IGP provisions suggest that the "report" does not constitute a "formal grievance" and that the report may consist of allegations of employee harassment which need not necessarily be set forth in the same type of formal, documentary complaint which must otherwise be submitted in the course of complying with the more formal strictures of Section 701.7. Allowing inmates to complain about harassment in this manner without forcing them to submit such a [**15] "formal grievance" is wholly consistent with the purpose of Section 701.11, which provides for an expedited procedure precisely because "allegations of employee harassment are of particular concern to the administrators of the department facilities." See 7 N.Y. COMP. CODES R. & R., tit. 7, § 701.11.

Accordingly, assuming that Plaintiff's allegations are true, discovery as to his less formal verbal and written complaints to "correctional officials" and the investigation which supposedly ensued therefrom is directly relevant to the question of whether he exhausted his administrative remedies pursuant to the expedited procedure set out in Section 701.11. To the extent that he reported allegations relating to the May 19, 2000 assault to the appropriate officials, he may have satisfied the exhaustion requirement imposed by the PLRA by complying with the expedited process enumerated above. Since an investigation by the Inspector General's Office is among the very results which may be triggered by a Superintendent's determination that a grievance represents a bona fide case of harassment, discovery with respect to any such investigation may indicate whether correctional officials interpreted [**16] Plaintiff's allegations as a harassment grievance within the meaning of Section 701.11, whether they viewed his allegations as a bona fide case of harassment, and to what extent, if any, Plaintiff and the correctional officials generally followed the procedure which applies to allegations of harassment.

In addition, Plaintiff's requested discovery would be relevant to the issue of whether he exhausted his administrative remedies even if he failed to follow the expedited procedure set forth in Section 701.11. In the past, courts repeatedly held that, where an inmate was incarcerated in a New York State correctional facility, his informal grievance efforts could not satisfy the exhaustion requirement of the PLRA. See Mills v. Garvin 2001 U.S. Dist. LEXIS 3333, 2001 WL 286784 (S.D.N.Y. Mar. 2, 2001) *3 (plaintiff's letters to prison officials were insufficient to exhaust his administrative remedies and plaintiff's complaint should ordinarily be dismissed where he failed to follow the prescribed grievance procedure); Laureano v. Pataki 2000 U.S. Dist. LEXIS 14221, 2000 WL 1458807 (S.D.N.Y. Sept. 29, 2000) *2 (plaintiff's letter complaints to various prison employees were insufficient to exhaust his administrative [**17] remedies as they did not satisfy Section 701.7); Noguera v. Hasty 2000 U.S. Dist. LEXIS 11956, 2000 WL 1011563 (S.D.N.Y. July 21, 2000) *12 n.23, report and recommendation adopted in part 2001 U.S. Dist. LEXIS 2458, 2001 WL 243535 (S.D.N.Y. Mar. 12, 2001) ("The Court notes that simple letter complaints to the Commissioner [*545] of the New York State Department of Correctional Services about excessive force and medical indifference appear quite common, and such complaints are not normally sufficient to serve as a proxy for following and exhausting proper administrative remedies"); Grey, 2000 U.S. Dist. LEXIS 8656, 2000 WL 815916 at *2 (plaintiff failed to exhaust his available administrative remedies where he complained directly to the Inspector General's Office but failed to file a complaint with the grievance committee); Beatty v. Goord 2000 U.S. Dist. LEXIS 3210, 2000 WL 288358 (S.D.N.Y. Mar. 16, 2000) *4-*5 (where a Sing Sing inmate grieved his complaint by writing letters to the Superintendent of Sing Sing but failed to utilize the formal grievance procedures set forth in Section 701.7, his efforts were "not sufficient to comply with the Inmate Grievance Program" and he therefore failed to exhaust his administrative remedies); [**18] Santiago, 89 F. Supp.2d at 438-439 (finding that an inmate incarcerated in a state correctional facility failed to exhaust his administrative remedies because, among other reasons, he did not pursue his claim with the appropriate grievance committee); Salahuddin v. Mead 1997 U.S. Dist. LEXIS 8895, 1997 WL 357980 (S.D.N.Y. Jun. 26, 1997) *4, rev'd on other grounds (2d Cir. 1999) 174 F.3d 271 ("Plaintiff's letters of complaint to defendants Kulmann and Coombe are insufficient to exhaust administrative remedies...Plaintiff must follow the procedure established by the inmate grievance resolution committee...and file an official complaint with that committee").

However, the relevant regulations state that "the inmate grievance program...is intended to supplement, not replace, existing formal or informal channels of problem resolution." 7 N.Y. COMP. CODES R. & R., tit. 7, § 701.1(a) (emphasis added). Indeed, the regulations provide that "an inmate should seek assistance in resolving a complaint through a guidance unit, program area directly affected, or other existing channels, informal or formal, prior to submitting a formal grievance," and emphasize that [**19] "an inmate should be encouraged to attempt to resolve a problem on his/her own." Id. 7 N.Y. COMP. CODES R. & R., tit. 7, § 701.3(a) (emphasis added). Accordingly, after the foregoing decisions were issued by courts in this district, the Second Circuit explained that the resolution of a grievance "through informal channels satisfies the exhaustion requirement, as under the administrative scheme applicable to New York prisoners, grieving through informal channels is an available remedy." Marvin v. Goord (2d Cir. 2001) 255 F.3d 40, 43 n.3.

Defendants insist that Marvin is inapplicable to the circumstances here since the inmate in Marvin resolved his grievance informally "at the correctional level" whereas Plaintiff here supposedly pursued his grievance informally through the Inspector General's Office. See April 8, 2002 Singleton Letter at 4 (emphasis in the original). However, as we have already discussed, neither party has, as of yet, provided us with sufficient information as to whether Plaintiff submitted his complaints directly to the Inspector General's Office or whether he also pursued them through officials at the "correctional level." Indeed, [**20] that is exactly the type of information which Plaintiff hopes to discover through the request at issue here in order to advance his defense against Defendants' contention that he failed to appropriately exhaust his administrative remedies.

In Marvin, the Second Circuit explained that the plaintiff's "submissions indicate that he succeeded in overturning the prohibition [in question] informally by complaining to various correctional officials." Marvin, 255 F.3d at 43 (emphasis added). As in Marvin, the Plaintiff here also contends that he successfully obtained as favorable a resolution to his grievance as possible after he complained about the assault to "correctional officials." According [*546] to Plaintiff, it was these complaints which ultimately resulted in the investigation by the Inspector General's Office.

If the discovery requested in this instance ultimately supports Plaintiff's allegations, he may be able to establish that he resolved his grievance through precisely the type of informal channels which are permitted under both Marvin and the New York administrative scheme. See Noguera, 2000 U.S. Dist. LEXIS 11956, 2000 WL 1011563 at *12 (finding that a plaintiff's [**21] letter complaints to the warden about sexual abuse satisfied the exhaustion requirement since the complaint accomplished "everything that might have happened" if she had written out a more formal complaint and formal procedures were triggered by the letter, thereby "providing an administrative record and obviating any threat of weakening or undermining the administrative scheme"). n1 To the extent that plaintiff's allegations are true, he would seemingly have accomplished much of what he might otherwise have achieved by way of the formal IGP process, as his alleged complaints to correctional officials about the assault purportedly secured the same favorable resolution available to him pursuant to the procedure enumerated in Section 701.11. See 7 N.Y. COMP. CODES R. & R., tit. 7, § § 701.11(b)(3), 701.11(b)(4)(ii). Given the specific manner in which his grievance was supposedly resolved and the fact that money damages were unavailable to him through the IGP process, Plaintiff could not have sought a significantly better result and would have had little reason to appeal from such a resolution. Under these unusual circumstances, it would make little sense to demand that Plaintiff jump [**22] through the further, elaborate hoops of the IGP procedure. See Camp v. Brennan (3d Cir. 2000) 219 F.3d 279, 281 (finding that the plaintiff did not need to jump through any further administrative hoops where his allegations were fully addressed on their merits by the administrative authorities).



n1 Defendants ask us to ignore the analysis addressing the exhaustion of administrative remedies which Magistrate Judge Peck articulated in the Report and Recommendation set forth in Noguera v. Hasty 2000 U.S. Dist. LEXIS 11956, 2000 WL 1011563 (S.D.N.Y. July 21, 2000) as Judge Wood ultimately chose not to adopt that portion of the recommendation which related to Plaintiff's informal resolution of her excessive force grievance. See Noguera v. Hasty 2001 U.S. Dist. LEXIS 2458, 2001 WL 243535 (S.D.N.Y. Mar. 12, 2001) *1, *3 n.4. However, Judge Wood chose not to adopt Judge Peck's analysis regarding Plaintiff's satisfaction of the exhaustion requirement because, after Judge Peck issued his report, the Second Circuit held that the exhaustion requirement did not apply to, among other things, excessive force claims. See Noguera, 2001 U.S. Dist. LEXIS 2458, 2001 WL 243535 at *4, citing Nussle v. Willete, 224 F.3d 95 (2d Cir. 2000). Accordingly, rather than adopting Judge Peck's analysis, Judge Wood followed the Second Circuit's decision in Nussle and held that the plaintiff's claims were simply not subject to the exhaustion requirement. See Noguera, 2001 U.S. Dist. LEXIS 2458, 2001 WL 243535 at *4-*5. The Supreme Court recently overturned the Second Circuit's decision in Nussle and held that the exhaustion requirement applied to 42 U.S.C. § 1983 excessive force claims. See Porter, 122 S. Ct. at 987-992. Since Judge Wood's reasons for not adopting the relevant portion of Judge Peck's Report and Recommendation in Noguera no longer apply to excessive force claims, we are not constrained from considering Judge Peck's thoughtful analysis.


[**23]

The discovery which Plaintiff has requested is therefore directly relevant to, at the very least, the question of whether Plaintiff exhausted his administrative remedies either pursuant to the IGP procedure enumerated in Section 701.11 or through informal channels as permitted under the New York administrative scheme. Accordingly, we grant Plaintiff's request to obtain such discovery prior to our consideration of Defendants' forthcoming motion to dismiss. We note that since we have not yet received sufficient information [*547] as to Plaintiff's actual efforts to satisfy the PLRA's exhaustion requirement, we take no position today as to whether Plaintiff did or did not exhaust his available administrative remedies.

CONCLUSION

For the foregoing reasons, Plaintiff's discovery request is hereby GRANTED. Defendants are directed to provide Plaintiff with the discovery which relates to his complaints to correctional officials about the May 19, 2000 assault and the investigation into that assault which was purportedly conducted by the Inspector General's Office.


SO ORDERED.


April 10, 2002

New York, New York

WHITMAN KNAPP, SENIOR U.S.D.J.