Arce v. Keane, et al.

An asthmatic inmate filed a 42 U.S.C. sec. 1983 action, claiming violations of the Americans With Disabilities Act and the Eighth Amendment after being placed in a dormitory room with smokers.  The district court granted Arce’s application for appointment of counsel because his position was one of substance and his claims involved complex legal issues.

After more than eight months with no counsel having been appointed, the district court, at 2002 U.S. Dist. LEXIS 5855, ordered the defendants to submit a supplemental brief in support of his its argument that Arce had failed to exhaust his administrative remedies and ordered the plaintiff to respond to the brief.

The district court, at 2004 U.S. Dist. LEXIS 3698, granted the defendants’ motion to dismiss on the grounds that Arce had failed to exhaust his administrative remedies under N.Y. Comp. Codes R. & Regs, tit. 7, sec. 701.7.   The Prison Litigation Reform Act (PLRA) requires a plaintiff to exhaust all administrative remedies before filing a complaint in federal court.  An inmate’s failure to appeal a grievance is not excused because, as is the case here,  he has received no response to his initial grievance.

2001 U.S. Dist. LEXIS 10845 (U.S.D.C. So. D. N.Y.).