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United States Court of Appeals,Second Circuit.

Joseph BERRY, Plaintiff-Appellant, v. Bernard B. KERIK, Commissioner of New York City Department of Corrections, et al., Defendants-Appellees.

Docket Nos. 03-0017, 03-0141.

Decided: September 25, 2003

Before:  NEWMAN, SOTOMAYOR, and WESLEY, Circuit Judges. Joseph T. Berry, pro se, Wyoming Correctional Facility, Attica, N.Y.

This motion for appointment of counsel on appeal merits a brief opinion to clarify whether a district court should dismiss with or without prejudice a prison conditions complaint by a prisoner who has not exhausted administrative remedies.   The motion is brought by Joseph T. Berry after judgment was entered in the District Court for the Southern District of New York (Richard M. Berman, District Judge), dismissing with prejudice two complaints against New York City prison officials.   Because Berry failed to exhaust his administrative remedies for several months during which those remedies were available and because such remedies are no longer available, dismissal with prejudice was proper.   The appeal therefore is entirely without merit, the motion is denied, and the appeal is dismissed.


Berry filed two lawsuits under 42 U.S.C. § 1983, complaining of mistreatment while he was incarcerated at Riker's Island Correctional Facility (“Riker's”), under the jurisdiction of the New York City Department of Corrections (“NYCDOC”).   The first lawsuit alleged inadequate dental care for a condition that developed in March 1998.   The second alleged lack of heat and hot water beginning in October 1998.   Berry acknowledges that he did not pursue to completion his administrative remedies with respect to his first complaint and took no action to exhaust administrative remedies with respect to his second complaint.

Berry was released from Riker's in January 1999 and then returned to the custody of the NYCDOC in August 2000.   After a few days at the Queens Detention Complex, he was confined at Riker's until November 2000, when he was transferred to a state prison.   Magistrate Judge James C. Francis IV recommended dismissal of both lawsuits for lack of exhaustion of administrative remedies.   After receiving Berry's objections to the recommendation, Judge Berman dismissed both lawsuits with prejudice.


Congress has provided that “[n]o action shall be brought with respect to prison conditions ․ by a prisoner ․ until such administrative remedies as are available are exhausted.”  42 U.S.C. § 1997e(a) (2000);  see Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002).   As we have noted, “[f]ailure to exhaust administrative remedies is often a temporary, curable procedural flaw.   If the time permitted for pursuing administrative remedies has not expired, a prisoner who brings suit without having exhausted these remedies can cure the defect simply by exhausting them and then reinstituting his suit ․” Snider v. Melindez, 199 F.3d 108, 111-112 (2d Cir.1999).   In such circumstances, we have recognized that dismissal without prejudice is appropriate.   See Neal v. Goord, 267 F.3d 116, 123 (2d Cir.2001);  Giano v. Goord, 250 F.3d 146, 151 (2d Cir.2001).

However, in Morales v. Mackalm, 278 F.3d 126, 128, 131 (2d Cir.2002), we broadly stated in dictum that any dismissal for failure to exhaust administrative remedies should be without prejudice.   That statement was dictum;  the holding in Morales was that exhaustion was not required for a retaliation claim, id. at 128 (citing Lawrence v. Goord, 238 F.3d 182 (2d Cir.2001)), a holding subsequently abrogated by the Supreme Court in Porter, 534 U.S. at 532, 122 S.Ct. 983, which applied the exhaustion requirement to “all inmate suits about prison life.”   Significantly, Morales relied on our prior decision in Giano, see Morales, 278 F.3d at 131, but Giano, in approving a dismissal without prejudice, had been careful to note that administrative procedures were still available to the prisoner, see Giano, 250 F.3d at 150.  Morales understandably recommended a dismissal without prejudice in the circumstances of that case, since, at that time, exhaustion was not thought to be required for the prisoner's claim.   However, the broader dictum that dismissal for failure to exhaust “should” be without prejudice would extend too far if applied to cases where exhaustion was required but administrative remedies have become unavailable after the prisoner had ample opportunity to use them.

In the pending case, Berry's administrative remedies became unavailable for two reasons.   Initially the reason was that he was released from confinement at Riker's.   After his reincarceration, his administrative remedies at Riker's became unavailable because he was transferred to a state prison.   However, Berry remained at Riker's for several months after the onset of the conditions that gave rise to his complaints and prior to his release, and then had three more months to pursue administrative remedies between his reincarceration and his transfer to state custody.   Under these circumstances, his failure to pursue administrative remedies while they were available precluded his federal lawsuits, and they were properly dismissed with prejudice.1

Since the appeal is frivolous, it must be dismissed, see 42 U.S.C. § 1997e(c)(1);  see also Crawford-El v. Britton, 523 U.S. 574, 600, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (authorizing dismissal of frivolous in forma pauperis suits pursuant to 28 U.S.C. § 1915(e)(2) (Supp. II 1996)). Berry's motion for appointment of counsel, which, in any event, could not satisfy the standard of “likely merit,” see Cooper v. A. Sargenti Co., 877 F.2d 170, 171-74 (2d Cir.1989), is denied as moot.


1.   We have no occasion to consider the exhaustion requirement in situations where only a brief interval elapses between the episode giving rise to the prisoner's complaint and the prisoner's release or transfer to the custody of another jurisdiction.

JON O. NEWMAN, Circuit Judge.