OPINION & ORDER Plaintiff Kyle Senear (“Plaintiff”), proceeding pro se and in forma pauperis, commenced this action on December 27, 2021 pursuant to 42 U.S.C. §1983, alleging violations of the Eighth Amendment as well as common law claims for negligence against Defendants Mininni, Brogan, and John Doe, who are corrections officers for the New York State Department of Corrections and Community Supervision (“DOCCS”). (See Complaint (“Compl.”), ECF No. 2 at 1.) Presently before this Court is Defendants’ motion to dismiss Plaintiff’s Complaint pursuant to the Federal Rules of Civil Procedure Rule 12(b)(6). (ECF No. 21.) For the reasons set forth below, Defendants’ motion is GRANTED and Plaintiff’s claims are dismissed without prejudice. BACKGROUND I. Factual Background The following facts are taken from Plaintiff’s Complaint and are assumed to be true for the purposes of this motion. The events of this litigation arise out of Plaintiff’s incarceration at the Green Haven Correctional Facility (“Green Haven”). On August 9, 2021, Plaintiff exited his cell for dinner. (Compl. at
2-3.) Upon exiting his cell, he noticed another inmate nearby who he had previously had an altercation with. (Id. at 3.) As a result, he asked Defendant Doe to let him return to his cell, but Defendant Doe refused his request. (Id. at 4.) Plaintiff then informed Defendant Mininni that the other inmate had previously instigated a fight with Plaintiff, and both Defendants Mininni and Doe began laughing and ordered Plaintiff to go to dinner. (Id. at 5.) As Plaintiff turned to go to dinner, the other inmate attacked Plaintiff with a “small handled broom,” hitting Plaintiff several times while Defendants Doe and Brogan stood nearby and watched. (Id. at 6.) After “several minutes,” Defendants Brogan and Mininni ordered the attacking inmate to stop. (Id. at 7.) As a result of the assault, Plaintiff suffered head trauma, receiving “staples to the head, 2 of them.” (Id. at II, 9.) Plaintiff states that he attempted to exhaust his remedies on multiple occasions but that “none of [his] grievances were answered or filed.” (Id. at IV.) Further, he alleges that he “tried to appeal the unanswered grievances to the superintendent, [but] he never responded.” (Id.) II. Procedural Background On December 27, 2021, pro se Plaintiff filed his Complaint alleging Defendants violated the Eighth Amendment when they failed to protect him from the assault of another inmate. (See generally Compl.) Plaintiff also brings state law claims for negligence. (Id.) Defendants were granted leave to file a motion to dismiss by order dated July 1, 2022 (ECF No. 20), and Defendants filed their motion on October 13, 2022 (ECF No. 21). Plaintiff did not file an opposition. STANDARD OF REVIEW I. Rule 12(b)(6) Under Federal Rule of Civil Procedure Rule 12(b)(6), dismissal is proper unless the complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007)). When there are well-pled factual allegations in the complaint, “a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. The critical inquiry is whether the plaintiff has pled sufficient facts to nudge the claims “across the line from conceivable to plausible.” Twombly, 550 U.S. at 555. A motion to dismiss will be denied where the allegations “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Where a motion to dismiss is unopposed, a court should nevertheless “assume the truth of a pleading’s factual allegations and test only its legal sufficiency.” McCall v. Pataki, 232 F.3d 321, 322 (2d Cir. 2000). While the Court must take all material fact allegations as true and draw reasonable inferences in the non-moving party’s favor, the Court is “not bound to accept as true a legal conclusion couched as a factual allegation,” or to credit “mere conclusory statements” or “[t]hreadbare recitals of the elements of a cause of action.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Where a pro se plaintiff is concerned, the Court is obliged to construe pro se pleadings liberally, particularly when they allege civil rights violations. See McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004). Further, courts must interpret a pro se plaintiff’s pleadings “to raise the strongest arguments that they suggest.” Harris v. City of New York, 607 F.3d 18, 24 (2d Cir. 2010) (internal citation omitted). Nevertheless, a pro se plaintiff’s pleadings must satisfy the plausibility standards in Iqbal and Twombly. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). II. Section 1983 Section 1983 provides, in relevant part, that “[e]very person who, under color of any statute, ordinance, regulation, custom, usage, of any State…subjects, or causes to be subjected, any citizen of the United States…to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.” 42 U.S.C. §1983. Section 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979); see also Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004). To state a claim under Section 1983, a plaintiff must allege “(1) the challenged conduct was attributable to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed by the U.S. Constitution.” Castilla v. City of New York, No. 09-CV-5446 (SHS), 2013 WL 1803896, at *2 (S.D.N.Y. Apr. 25, 2013) (citing Giordano v. City of N.Y., 274 F.3d 740, 750 (2d Cir. 2001)). Moreover, Plaintiff must allege facts showing Defendant’s direct and personal involvement in the alleged constitutional deprivations. See Spavone v. N.Y. Dep’t of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013). DISCUSSION I. Prison Litigation Reform Act (“PLRA”) The PLRA instructs that “[n]o action shall be brought with respect to prison conditions under section 1983…or any other federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. §1997(e)(a). The Supreme Court and the Second Circuit have long held that the PLRA establishes a mandatory exhaustion regime that forecloses judicial discretion over an unexhausted claim. See Ross v. Blake, 578 U.S. 632, 641 (2016); see also Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (“Exhaustion is mandatory — unexhausted claims may not be pursued in federal court.”). Further, the Supreme Court has construed Section 1997(e)(a) to require “proper exhaustion,” which is attained only when an inmate appeals to the highest procedure level possible and receives a final decision regarding their grievance. See Woodford v. Ngo, 548 U.S. 81, 93 (2006); see also Torres v. Carry, 672 F. Supp. 2d 338, 344 (S.D.N.Y. 2009) (declining to find exhaustion where plaintiff had not “fully exhausted” his administrative remedies because there was “no evidence that a final decision” was “rendered” on plaintiff’s administrative appeal). To fully exhaust one’s claims, a plaintiff who is incarcerated in New York State custody must exhaust a claim by adhering to the DOCCS Inmate Grievance Program (“IGP”). IGP requires prisoners to complete a three-step inmate grievance procedure, including two levels of appeals, to fully exhaust administrative remedies. See Williams v. Correction Officer Priatno, 829 F.3d 118, 119-120 (2d Cir. 2016); see also 7 N.Y. Comp. Codes R. & Regs. (“NYCRR”) §§701.5(b)-(c) (outlining three-step grievance procedure). To properly initiate a grievance, an inmate must file their complaint “within 21 calendar days” of the alleged incident. 7 NYCRR §701.5(a)(1). To properly exhaust a grievance, an inmate must (1) “file[] a grievance with the Inmate Grievance Resolution Committee (‘IGRC’),” (2) “appeal an adverse decision by the IGRC to the superintendent of the facility,” and (3) “appeal an adverse decision by the superintendent to the [Central Office Review Committee ('CORC')].” See McGee v. McGready, No. 16-CV-4187 (NSR), 2018 WL 2045094, at *2 (S.D.N.Y. Apr. 30, 2018) (citing 7 NYCRR §701.5). “[T]he final step in the grievance procedure always remains the appeal to CORC. Thus, only after CORC has reviewed the appeal and rendered a decision are New York’s grievance procedures exhausted.” Gardner v. Daddezio, No. 07-CV-7201 (SAS), 2008 WL 4826025, at *2 (S.D.N.Y. Nov. 5, 2008) (footnote omitted). Non-exhaustion is an affirmative defense, not a pleading requirement; thus, incarcerated plaintiffs need not plead exhaustion with particularity. See McCoy v. Goord, 255 F. Supp. 2d 233, 248 (S.D.N.Y. 2003) (citing Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir. 1999)). Instead, a defendant bears the burden of proof in demonstrating non-exhaustion. Colon v. N.Y.S. Dep’t of Corr. & Cmty. Supervision, No. 15-CV-7432 (NSR), 2017 WL 4157372, at *4 (S.D.N.Y. Sept. 15, 2017) (citing Key v. Toussaint, 660 F. Supp. 2d 518, 523 (S.D.N.Y. 2009)). Dismissal on a Rule 12(b)(6) motion for failure to exhaust is appropriate when non-exhaustion is clear from the face of the complaint. See Williams, 829 F.3d at 122. On such a motion, a court is confined to the four corners of the complaint, the documents attached thereto, and sources of which it is entitled to take judicial notice. See McGready, 2019 WL 6341290, at *2 (citing Kleinman v. Elan Corp., 706 F.3d 145, 152 (2d Cir. 2013) and Gonzalez v. Hasty, 651 F.3d 318, 321 (2d Cir. 2011)). There are, however, limited circumstances in which extrinsic evidence of exhaustion may be considered by courts: “(1) the standard pro se complaint form has a checked box regarding exhaustion; (2) the allegations in the complaint clearly state that the inmate exhausted administrative remedies; or (3) the complaint clearly establishes that the inmate had, in fact, not exhausted administrative remedies.” Murray v. Orange County, No. 18-CV-0442 (NSR), 2020 WL 3450782, at *3 (S.D.N.Y. June 23, 2020). Here, Plaintiff affirmatively states in his complaint that he “exhausted all administrative remedies.” (Compl. at IV.) Because Plaintiff clearly alleges that he attempted to exhaust his administrative remedies, the Court may consider extrinsic evidence of exhaustion. See, e.g., Murray, 2020 WL 3450782, at *3. Additionally, because the exhaustion issue is an integral part of the Plaintiff’s claim, the Court may refer to materials outside of the complaint to determine whether Plaintiff has, in fact, exhausted his administrative remedies.1 See McGready, 2018 WL 2045094, at *4. Plaintiff failed to fully exhaust his administrative remedies through the IGP program. Plaintiff contends that he “attempted to exhaust [his] remedies on multiple occasion’s (sic) [but] none of [his] grievances were answered or filed,” and that he subsequently “tried to appeal the unanswered grievances to the superintendent, [and the superintendent] never responded.” (Compl. at IV.) Defendants, however, argue that Plaintiff failed to exhaust his administrative remedies prior to bringing this action. (Memorandum of Law in Support of Defendants’ Motion to Dismiss (“Defs. Mem.”), ECF No. 22 at 8-11.) More specifically, Defendants claim that Plaintiff failed to pursue available administrative remedies because Plaintiff did not file a grievance pertaining to the alleged incident, nor did he subsequently appeal any related grievance to CORC. (Id. at 10.) In support of their motion, Defendants offer evidence that Plaintiff failed to file a grievance concerning allegations of the Defendants’ failure to protect him from the attack of another inmate. (See Declaration of Laura Stanaway (“Stanaway Decl.”), ECF No. 25 at
