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Judge Cogan http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=119475 PLAINTIFF prisoner arrived at the Metropolitan Detention Center (MDC) on Dec. 6, 2007, as an interim stop during transportation to a Federal Correctional Center in Ohio. He remained at the MDC until Jan. 29, 2008, Asserting violations of his Fifth and Eighth Amendment rights pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, he challenged revocation of his assignment to a bottom bunk. Plaintiff claimed that prison authorities knew him to be prone to violent seizures and that he was hurt in a fall after being assigned to a top bunk. Between Dec. 20, 2007, and July 11, 2008, plaintiff completed a variety of BP-8, BP-9, and BP-10 forms used to resolve grievances. Pursuant to the Prison Litigation Reform Act the court dismissed plaintiff’s complaint as against individual employees of the Federal Bureau of Prisons, concluding that plaintiff failed to exhaust administrative remedies. Despite meeting the first two requirements of the Second Circuit’s decision in Hemphill v. New York, plaintiff failed to articulate why he did not file his BP9 until two months after the incident instead of the 20 days that was required. Also, plaintiff inexplicably took three months to file his BP-10 form rather than 20 days after the BP-9 was “deemed denied.”

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