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New York�The 2d U.S. Circuit Court of Appeals has cautioned judges to examine carefully whether prisoners have failed to exhaust their administrative remedies before using that as the ground for dismissing inmates’ suits. The court said prisoners must have “notice and opportunity to respond” to a possible dismissal of their claims. It said a federal civil rights case was improperly dismissed without a hearing because a prisoner had answered an emergency room form indicating he had not pursued an administrative grievance. Judge Wilfred Feinberg said the 2d Circuit was taking the occasion of deciding Mojias v. Deputy Johnson, No. 03-121, “to reiterate and refine its holding” in Snider v. Melendez, 199 F.3d 108 (1999), a similar case that dealt with the exhaustion requirement of the Prison Litigation Reform Act of 1995, 42 U.S.C. 1997e(a). In the Snider case, the circuit said that a court “may not dismiss for failure to exhaust administrative remedies unless the court determines that such remedies are available.” It said the question is one of law, and the court “cannot properly determine a question of law on the basis of a party’s concession.” Judges, therefore, are “obligated to establish the availability of an administrative remedy from a legally sufficient source” before dismissing a prisoner’s complaint. In the Mojias case, Demostede Mojias was allegedly assaulted in 2002 by officers while in the custody of the New York City Department of Corrections. Emergency room form While being treated in the emergency room, he filled out a form and answered “yes” to whether there was a grievance procedure at the institution, and then answered “no” to whether he had presented the facts relating to his complaint in the state prisoner grievance procedure. The answers prompted Judge Naomi Reice Buchwald to dismiss his civil rights case for failure to exhaust his remedies as required by the prison reform act. His lawyers, John Boston, director of the Legal Aid Society’s Prisoner’s Rights Project, and co-counsel Mary Lynne Werlwas, argued that he was a city prisoner who obviously had not gone through a state procedure. Moreover, they noted, grievance procedures don’t cover assault claims.

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