Tutora v. Groveland Correctional Facility et al

Filing 19

ORDER granting defendant Nancy Hill's 11 Motion for Summary Judgment and dismissing the complaint. ***CLERK TO FOLLOW UP. Signed by Hon. David G. Larimer on 9/19/11. (EMA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
TOLEKSIS B. TUTORA, SR.,

Plaintiff,
DECISION AND ORDER
10-CV-6117L
v.
NURSE NANCY HILL,

Defendant.
________________________________________________
Plaintiff, Toleksis B. Tutora, Sr., proceeding pro se, brings this action against defendant
Nancy Hill. Plaintiff, an inmate in the custody of the New York State Department of Correctional
Services (“DOCS”), alleges that Hill, who at all relevant times was a nurse employed by DOCS,
violated his federal constitutional rights in certain respects in 2009, while plaintiff was confined at
Groveland Correctional Facility. Defendant has moved for summary judgment.1
The basis for Hill’s motion is that plaintiff has failed to exhaust his administrative remedies
as required by the Prisoner Litigation Reform Act (“PLRA”), see 42 U.S.C. § 1997e(a). The PLRA’s
exhaustion requirement pertains 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 complaint here alleges that there is a grievance procedure at Groveland, see Dkt. #1 at
5, but it does not allege any facts about whether plaintiff ever filed or pursued any grievances
concerning the matters giving rise to this lawsuit. In support of her motion for summary judgment,

1

Plaintiff’s claims against two other defendants, Groveland Correctional Facility and Dr.
Lester Wright, have been dismissed. See Dkt. #5, #10.

Hill has submitted evidence that DOCS has no record of any grievance or appeal by plaintiff about
those matters. See Dkt. #12, #13. Plaintiff–who was fully advised by defendants and by this Court
of the nature of a summary judgment motion and of the consequences of his failure to rebut
defendants’ factual assertions in their motion, see Dkt. #11, #16, #17–has responded to the motion,
but his response deals only with the underlying facts of his claim, and it does not address the
exhaustion issue. See Dkt. #18.
Since plaintiff has not even alleged that he has exhausted his administrative remedies, much
less rebutted defendants’ evidence in that regard, his complaint must be dismissed. The PLRA
makes clear that all levels of the prison grievance procedure must be exhausted before an inmate may
commence litigation in federal court. See Macias v. Zenk, 495 F.3d 37, 43-44 (2d Cir. 2007). Since
plaintiff has apparently not met that requirement, his complaint must be dismissed. See Crenshaw
v. Syed, 686 F.Supp.2d 234, 236 (W.D.N.Y. 2010).

CONCLUSION
Defendant Nancy Hill’s motion for summary judgment (Dkt. #11) is granted and the
complaint is dismissed.
IT IS SO ORDERED.

_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
September 19, 2011.

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