Judge Thomas Griesa
Inmate Dixon was not eating because his food was being “violat[ed].” Approaching Dixon’s cell to take him to the emergency room, guard Thom allegedly grabbed Dixon’s neck and pressed his head against the door. His injuries included pain from his neck to his spine, and problems with turning his neck. Except for Thom, claims against all other defendants were dismissed. Dixon filed a harassment grievance with Inmate Grievance Resolution Committee, but did not allege appeal to the Central Office Review Committee (CORC). Nor was it clear whether in “filing to CORC” Dixon submitted a Form #2133 with the inmate grievance clerk as specified in New York Department of Corrections regulations. However, Dixon’s allegations showed a “reasonable attempt” to exhaust remedies despite receiving no response from officials. Further, a correctional facility’s failure to respond can be an exception to the exhaustion requirement. The court could not determine Thom’s entitlement to qualified immunity until further development of Dixon’s “hardly strong” Eighth Amendment claim alleging Thom struck him for no legitimate purpose, inflicting injuries of some seriousness to his head and neck.
