State's Motion to Dismiss Lawsuit for Failure to Exhaust Administrative Remedies Denied
State's Motion to Dismiss Lawsuit for Failure to Exhaust Administrative Remedies Denied
The U.S. District Court for the Southern District of New York denied a motion by the state to dismiss a prisoner's lawsuit on the grounds that the prisoner failed to exhaust his administrative remedies.
Kareem S. Perry, then a prisoner at New York's Downstate Correctional Facility, filed suit against two Downstate guards, Torres and Mojica, alleging that they used excessive force against him. Under the Prison Litigation Reform Act, 42 U.S.C. § 1997e (a), a prisoner must first exhaust his administrative remedies, i.e., the grievance process, prior to bringing suit in federal court. Soon after Perry filed his lawsuit, the state filed a motion for summary judgment under Fed. R. Civ. P. 56, asserting that Perry did not fully exhaust the grievance process prior to bringing his suit. In their motion and supporting declarations from prison staff, the state argued that Perry did not exhaust level three of New York's three-step grievance process.
In opposition to the state's motion, Perry filed a declaration of his own, stating that the reason he did not appeal his grievance to level three was because he never received a response from the superintendent to his level two grievance.
In denying the state's motion, the court ruled that the opposing declarations created a dispute of material facts and, as the non-moving party, Perry's facts must be taken as true for the purpose of summary judgment.
The court held that because New York's grievance regulations contain no direction on what a prisoner is supposed to do when he receives no response to a grievance appeal, and because Perry's statement that he did not receive a response to his second level grievance was presumptively true, the state's summary judgment motion must be denied.
Perry represented himself on appeal pro se. See: Perry v. Torres, U.S.D.C. (S.D. N.Y.), Case no. 08-cv-09298-LAK-GWG.
Related legal case
Perry v. Torres
| Cite | U.S.D.C. (S.D. N.Y.), Case no. 08-cv-09298-LAK-GWG |
|---|---|
| Level | District Court |