Urena v. Wolfson et al

Filing 164

ORDER denying 142 Motion for Reconsideration. For the reasons set forth in the attached Memorandum and Order, the court denies defendant Dr. Beaudouin's motion for partial reconsideration of the court's denial of summary judgment on plai ntiff's Bivens claim alleging that Dr. Beaudouin was deliberately indifferent to plaintiff's serious medical needs in violation of the Eighth Amendment. The parties shall contact Magistrate Judge Bloom by April 19, 2012 to schedule a settlement conference. The defendant shall serve a copy of this Memorandum and Order on the pro se plaintiff by April 9, 2012 and file a certificate of service by April 10, 2012. Ordered by Judge Kiyo A. Matsumoto on 4/6/2012. (Winterkorn, Margaret)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
JOSE RAFAEL URENA,
Pro se Plaintiff,
MEMORANDUM & ORDER
- against 09-CV-1107 (KAM)(LB)
ROBERT BEAUDOUIN, M.D.,
Defendant.
----------------------------------X
MATSUMOTO, United States District Judge:
On December 9, 2008, Jose Urena (“plaintiff”) commenced
this pro se action against Robert Beaudouin, M.D. (“Dr.
Beaudouin” or “defendant”) and other defendants alleging injuries
to his bladder, scrotum, and abdomen related to bladder cancer
while he was incarcerated in 2006 at the Metropolitan Detention
Center in Brooklyn, New York (“MDC”). 1
Complaint.)

(See ECF No. 4-3,

After the case was transferred from the Southern

District of New York to this court on March 11, 2009, an amended
complaint was filed on November 2, 2009 2, and discovery closed on
November 23, 2009.

The court granted in part and denied in part

the defendants’ respective motions to dismiss and motions for

1

The Complaint named Yan Wolfson, M.D., New York Downtown
Hospital, Dr. Beaudouin, and MDC as defendants. After the court’s decisions
dated December 6, 2010 and March 20, 2012, the only remaining defendant in the
case is Dr. Beaudouin.
2

Unless otherwise indicated, references herein are to the
Amended Complaint filed on November 2, 2009. (ECF No. 45, Amended Complaint.)

1

summary judgment on December 6, 2010.

(See ECF No. 102,

Memorandum and Order (“Urena I”)); Urena v. Wolfson, No. 09-CV1107 (KAM)(LB), 2010 U.S. Dist. LEXIS 128423 (E.D.N.Y. Dec. 6,
2010).
In Urena I, the court denied the summary judgment
motion of defendant Dr. Beaudouin, then a physician at MDC, on
plaintiff’s constitutional claim pursuant to Bivens v. Six
Unknown Named Agents, 403 U.S. 388 (1971), alleging that Dr.
Beaudouin was deliberately indifferent to plaintiff’s serious
medical needs in violation of the Eighth Amendment of the United
States Constitution (the “Bivens claim”).

(Urena I at 11-22.)

Presently before the court is Dr. Beaudouin’s motion for partial
reconsideration pursuant to Local Civil Rule 6.3 of the court’s
denial of summary judgment on plaintiff’s Bivens claim against
him.

For the reasons stated below, the court denies Dr.

Beaudouin’s motion for partial reconsideration.
BACKGROUND 3
In Urena I, the court liberally construed the pro se
plaintiff’s Bivens claim as alleging that Dr. Beaudouin was
deliberately indifferent to plaintiff’s serious medical needs in
violation of the Eighth Amendment by (1) delaying and denying

3

The court assumes the parties’ familiarity with the facts and
prior opinions of the court in this matter, particularly the court’s statement
of undisputed material facts in Urena I. (Urena I at 4-7.) Only the
background relevant to Dr. Beaudouin’s motion for partial reconsideration is
set forth below.

2

treatment to plaintiff prior to his initial surgery at New York
Downtown Hospital (“NYDH”) on November 2, 2006 to remedy his
bladder cancer; and (2) failing to adequately monitor plaintiff’s
recovery in between his discharge from NYDH to MDC on November 3,
2006 and his re-admission to NYDH on November 13, 2006 for
surgical repair of a bladder perforation.
20.)

(Urena I at 16-17,

The court denied Dr. Beaudouin’s motion for summary

judgment on the Bivens claim.

(See id. at 11-22.)

On December 20, 2010, Dr. Beaudouin timely filed a
motion for partial reconsideration.
Reconsideration.)

(See ECF No. 105, Motion for

Because the case was stayed for six months

from January 13, 2011 to June 15, 2011 while the court
unsuccessfully sought pro bono counsel to represent plaintiff
(see ECF No. 110, Order dated January 13, 2011; ECF No. 117,
Order dated June 15, 2011), Dr. Beaudouin’s motion for
reconsideration was terminated without prejudice on April 5,
2011, and he was granted leave to re-file his motion after the
stay had been lifted.

(See Order dated April 5, 2011.)

Thereafter, in accordance with the briefing schedule
subsequently adopted by the court, Dr. Beaudouin re-filed his
motion for partial reconsideration on September 12, 2011 (see ECF
No. 143, Memorandum of Law in Support of Defendant Beaudouin’s
Motion for Partial Reconsideration (“Beaudouin Mem.”)) with an
accompanying declaration (see ECF No. 143-1, Declaration of Dr.
3

Beaudouin (“Beaudouin Decl.”)).

The plaintiff filed an

opposition to Dr. Beaudouin’s motion (see ECF No. 130, Reply to
Defendant’s Memorandum of Law in Support of Defendant Beaudouin’s
Motion for Partial Reconsideration (“Pl. Opp’n”)), and Dr.
Beaudouin filed a reply brief (see ECF No. 144, Reply Memorandum
of Law in Further Support of Defendant Beaudouin’s Motion for
Partial Reconsideration (“Beaudouin Reply”)).

After considering

the parties’ submissions and for the reasons set forth below, the
court denies Dr. Beaudouin’s motion for partial reconsideration.
DISCUSSION
I.

Legal Standard for Reconsideration
“The decision to grant or deny a motion for

reconsideration is within the sound discretion of the district
court, and ‘is an extraordinary remedy to be employed sparingly
in the interests of finality and conservation of scarce judicial
resources.’”

Mangino v. Inc. Vill. of Patchogue, 814 F. Supp. 2d

242, 247 (E.D.N.Y. 2011) (citations omitted).

Local Civil Rule

6.3 provides that a party moving for reconsideration must set
forth “concisely the matters or controlling decisions which
counsel believes the court has overlooked.”

Local Civ. R. 6.3.

“The major grounds justifying reconsideration are ‘an intervening
change of controlling law, the availability of new evidence, or
the need to correct a clear error or prevent manifest

4

injustice.’”

Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd.,

956 F.2d 1245, 1255 (2d Cir. 1992) (citation omitted).
“It is black letter law that a ‘motion for
reconsideration may not be used to advance new facts, issues or
arguments not previously presented to the Court, nor may it be
used as a vehicle for relitigating issues already decided by the
Court.’”

Nat’l Union Fire Ins. Co. v. Las Vegas Prof’l Football

L.P., 409 F. App’x 401, 403 (2d Cir. 2010) (summary order)
(citations omitted); see also Vornado Realty Trust v. Castlton
Envtl. Contrs., LLC, No. 08-CV-04823 (DLI)(JO), 2011 U.S. Dist.
LEXIS 132086, at *5 (E.D.N.Y. Nov. 16, 2011) (“Reconsideration is
not a proper tool to repackage and relitigate arguments and
issues already considered by the court in deciding the original
motion.” (citation omitted)).

Undoubtedly, the “standard for

granting such a motion is strict, and reconsideration will
generally be denied unless the moving party can point to
controlling decisions or data that the court overlooked –
matters, in other words, that might reasonably be expected to
alter the conclusion reached by the court.”

Shrader v. CSX

Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (citations
omitted).
II.

Dr. Beaudouin’s Motion for Partial Reconsideration
Dr. Beaudouin moves for reconsideration of the court’s

denial of summary judgment on the Bivens claim on three grounds:
5

(1) the court incorrectly concluded that Dr. Beaudouin authored a
treatment note dated November 12, 2006; (2) the court overlooked
the fact that plaintiff himself limited his claim to the period
between November 3, 2006 and November 13, 2006; and (3) the court
incorrectly concluded that there were material disputed facts
related to plaintiff’s failure to exhaust his administrative
remedies.

Each one of these grounds will be discussed in turn.
A.

The Treatment Note Dated November 12, 2006

In finding there is a genuine dispute of material fact
as to whether Dr. Beaudouin was personally involved in the
alleged violation of plaintiff’s constitutional rights, the court
noted a one-page, handwritten treatment note dated November 12,
2006 obtained from plaintiff’s medical records while detained at
MDC. (See ECF No. 74, Declaration of Alexandra Fridel, Exhibit L
(“MDC Records”), at B000000041 (the “Treatment Note”).)
According to the Treatment Note, plaintiff complained of “pain in
stomach” and stated that he “had difficulty making bowel
movements” on that date, and the Treatment Note also contained
notations of an apparent examination of plaintiff and findings
regarding his heart, lungs, abdomen, and extremities.
Urena I at 19.)

(Id.; see

Importantly, the Treatment Note contained Dr.

Beaudouin’s stamped signature and appeared to directly contradict
the statement in his declaration in support of his motion for
summary judgment that plaintiff’s medical records do not indicate

6

that he examined plaintiff between November 3 and November 13,
2006.

(See Urena I at 19; ECF No. 69, Declaration of Dr.

Beaudouin ¶ 6.)
Dr. Beaudouin, however, contends that “a close
examination of the [Treatment Note] shows that it was prepared by
a Physician’s Assistant named Mitchell,” and asserts that the
handwriting is different.

(Beaudouin Mem. at 3-4.)

He further

asserts that he did not author the Treatment Note or review it on
November 12, 2006, but “merely entered a very short note” dated
November 16, 2006 – three days after plaintiff had been readmitted to NYDH – in a circle at the bottom right-hand corner of
the Treatment Note stating that plaintiff had been hospitalized.
(Id. at 3.)

Although the court notes that defendant never

submitted the underlying MDC medical records nor the explanation
he now offers in connection with his motion for summary judgment,
the court acknowledges that Dr. Beaudouin’s explanation of the
November 12, 2006 Treatment Note may be accepted by a jury. 4
Nonetheless, Dr. Beaudouin’s decision to make such a notation on
November 16, 2006 on the bottom of the Treatment Note dated
November 12, 2006 is peculiar in light of his later supplemental
declaration in support of reconsideration filed on September 12,
2011 that he did not recall treating plaintiff at any time after

4

The Treatment Note is a photocopy and all text contained on the
note, particularly Dr. Beaudouin’s notation at the bottom of the page, is in
small, cursive handwriting and difficult to read.

7

November 1, 2006, when plaintiff was purportedly transferred out
of Dr. Beaudouin’s building and treated thereafter by other
physicians.

(Beaudouin Decl. ¶¶ 5-7.)

Moreover, the medical record preceding the November 12,
2006 Treatment Note reveals a note authored by Dr. Beaudouin on
November 7, 2006 requesting a follow-up MRI of plaintiff’s
abdomen and pelvis (see MDC Records at B000000042), and a
subsequent medical note authored by a Dr. Goldstein on November
13, 2006 – the day plaintiff was re-admitted to NYDH - documents
plaintiff’s complaints of pain and an inability to urinate for
four days (see MDC Records at B000000040).

Curiously, Dr.

Beaudouin then claims to have noted on November 16, 2006, at the
bottom of the November 12, 2006 Treatment Note, that plaintiff
was readmitted to the hospital.

Dr. Beaudouin fails to explain

why he made notations in the plaintiff’s medical records on
November 7 and November 16, 2006 regarding plaintiff’s MRI and
hospitalization if he did not treat plaintiff after November 1,
2006.
Even if the court accepted the defendant’s invitation
to improperly act as a handwriting expert regarding the November
12 and November 16, 2006 treatment notes, and found that Dr.
Beaudouin did not author the November 12, 2006 Treatment Note and
did not have any interaction with plaintiff between November 1
and November 13, 2006 because Dr. Beaudouin and plaintiff were

8

located in different buildings at MDC (see Beaudouin Decl. ¶ 7),
these additional facts do not alter the conclusion reached by the
court that there is a genuine dispute of material fact as to
whether Dr. Beaudouin was personally involved in the alleged
violation of plaintiff’s constitutional rights during plaintiff’s
incarceration at MDC.

As previously discussed in Urena I, Dr.

Beaudouin “effectively ignores the allegations regarding the lack
of care prior to plaintiff’s first surgery” on November 2, 2006.
(Urena I at 19-21.)

For example, the record is replete with Dr.

Beaudouin’s notations documenting his numerous encounters with
plaintiff and plaintiff’s ongoing complaints relevant to his
bladder cancer prior to November 2, 2006.

(Id. at 19-21; see,

e.g., MDC Records at B000000047 (notation dated July 7, 2006
stating that plaintiff complained of “seeing blood and pus upon
urination x 1.5 years”); id. at B000000046 (notation dated July
20, 2006 stating the plaintiff complained of “blood in urine at
times”); id. at B000000048 (notation dated September 6, 2006
stating that plaintiff complained of “seeing blood and pus . . .
in urine once a month).) 5

5
As the party moving for summary judgment, Dr. Beaudouin made no
effort to support the blanket statements in his declaration that he had no
interaction with plaintiff with any citations to admissible evidence, such as
by providing the court with citations to plaintiff’s medical records at MDC
and information as to which physicians at MDC did in fact interact with
plaintiff, if not Dr. Beaudouin. Indeed, Dr. Beaudouin never submitted any of
plaintiff’s medical records from MDC to the court, let alone a complete,
legible set of medical records. The MDC Records as submitted to the court by
NYDH are out-of-order, unorganized, of poor quality, partially illegible, and
cutoff, presenting difficulties for the court to make definitive findings

9

Accordingly, resolving, as it must, all reasonable
inferences and ambiguities in favor of the nonmoving party on a
summary judgment motion, the court finds on the record before it
that Dr. Beaudouin has not established in his original motion or
on reconsideration that there is any basis to disturb the court’s
conclusion in Urena I that genuine disputes of material fact
exist as to whether Dr. Beaudouin was personally involved in the
alleged violation of plaintiff’s constitutional rights.
B.

Plaintiff’s Limitation of His Claims to the Period
Between November 3, 2006 and November 13, 2006

Relying on plaintiff’s November 3, 2009 videoconference deposition testimony in response to questions posed by
government counsel, Dr. Beaudouin asserts that plaintiff limited
his Bivens claim to the time period between his discharge from
NYDH to MDC on November 3, 2006 and his re-admission to NYDH on
November 13, 2006.

(Beaudouin Mem. at 5-8.)

The court, however,

rejects defendant’s reliance on the ambiguous testimony of the
pro se, non-English speaking plaintiff as a basis to foreclose
claims properly alleged in the pro se complaint and reasserted in
plaintiff’s opposing papers.
First, Dr. Beaudouin raises arguments on
reconsideration that are similar to arguments raised in

regarding the extent, or lack, of interaction between Dr. Beaudouin and
plaintiff. Should this case proceed to trial, Dr. Beaudouin is expected to
submit orderly, legible, complete, and chronologically paginated copies of
plaintiff’s medical records.

10

connection with his motion for summary judgment and rejected by
the court. 6

His more recent arguments do not involve any newly

discovered evidence that could not have been presented to the
court prior to its December 6, 2010 decision and is thus not
appropriate for a motion for reconsideration.

See Nat’l Union

Fire Ins. Co., 409 F. App’x at 403.
Second, Dr. Beaudouin’s selective citations to
plaintiff’s deposition testimony are unavailing in the context of
his motion for reconsideration of his summary judgment motion.
(Beaudouin Mem. at 5-6.)

Defendant cites the following line of

questions and responses during plaintiff’s deposition.

In

response to defense counsel’s question as to what plaintiff is
“alleging was wrong with the medical treatment that you received
while you were an inmate at MDC in Brooklyn,” plaintiff
responded, “[w]hat I allege in Brooklyn is that I was not given
any appropriate treatment as I was about to die, no one took care
of me.

I was just there dying in my bed.”

(Id.; ECF No. 70-2,

Transcript of Deposition of Jose Urena dated November 3, 2009
(“Urena Dep. Tr.”) at 42-43.)

Government counsel next asked,

“what period in time do you claim that no one was giving you
treatment,” and plaintiff answered that “[a]fter the operation,
that wrong operation, I never had any treatment,” referring to

6

In Urena I, as here, “the court is troubled by the government’s
overly narrow construction of the temporal parameters of plaintiff’s
allegations in the complaint . . . .” (Urena I at 20.)

11

the Trans-Urethral Resection of Bladder Tumor (“TURBT”) procedure
performed at NYDH on November 2, 2006.

(Urena Dep. Tr. at 43.)

Subsequently, when defense counsel sought to confirm that
plaintiff is “not claiming that there was anything wrong with the
treatment [he] received prior to the [November 2, 2006] surgery,”
plaintiff responded “Correct.
receive treatment.”

After the operation I did not

(Id. at 44.)

Contrary to defendant’s contentions, plaintiff’s
answers do not lead to the conclusion that plaintiff “expressly
narrowed his own claims to the time period between November 3 and
November 13, 2006.”

(Beaudouin Mem. at 5.)

Rather, plaintiff

only reiterated that he did not receive appropriate treatment at
MDC after the November 3, 2006 procedure.

Defense counsel never

asked plaintiff specific questions to elicit testimony regarding
plaintiff’s treatment or lack of treatment at MDC prior to
November 3, 2006.
Indeed, prior to the foregoing line of questioning
cited by Dr. Beaudouin, defense counsel stated, “[t]he way I read
your complaint, you are complaining that Dr. Beaudouin in MDC did
not provide you with proper medical treatment.

Do you understand

that those are the allegations you are making in this case?”
(Urena Dep. Tr. at 37.)
(Id.)

Plaintiff responded, “Yes, correct.”

Defense counsel then asked plaintiff “[w]hat specifically

do you claim that Dr. Beaudouin did wrong in connection with your

12

medical treatment,” and plaintiff responded, without any temporal
limitation, that Dr. Beaudouin “is just part of what happened to
me.

They never really did give me any treatment. . . .

The

treatment, when I was in Brooklyn, they had to take me to
emergency rooms because I was about to die.
any longer.”

(Id.)

I couldn’t stand it

As previously discussed, this reading of

plaintiff’s testimony is consistent with plaintiff’s medical
records, which establish that Dr. Beaudouin did in fact treat and
examine plaintiff prior to November 3, 2006.

Dr. Beaudouin

cannot now on reconsideration argue that the pro se plaintiff
expressly limited his claims arising prior to November 3, 2006,
particularly where the plaintiff denies that he intended to
abdandon any such claims.

See Pl. Opp’n at 4 (stating that

plaintiff sought medical treatment at MDC for a period of over
one year and arguing that defense counsel – “a skilled attorney”
– twisted the meanings of plaintiff’s words during the
deposition).
Third, as discussed in Urena I, plaintiff adequately
alleged claims arising from Dr. Beaudouin’s conduct at MDC prior
to November 3, 2006 in the Amended Complaint, which is what
defines plaintiff’s claims.

(See Urena I at 20 (quoting Amended

Complaint ¶ II(D) (“After numerous requests for medical attention
from symptoms I was experiencing, the health service unit of
[MDC], under the directives of Dr. Beaudouin, Md [sic] finally

13

sent me to an outside hospital for medical exam [sic] from my
complaint[.]

It took over one year for this to happen from the

first time I reported this [sic] symptoms.”)); see also ECF No.
45-2, Motion in Support of Claim ¶ 1 (“Mr. Urena asserts that
while he was being housed at [MDC] . . . Mr. Urena started to
experience pain around his bladder area.

After several attempts

at sick call [sic] to find out what the problem was Mr. Urena was
finally taken to the [NYDH] . . . .”)).

Plaintiff’s deposition

testimony does not alter the court’s conclusion in Urena I that
the Amended Complaint “alleges that Dr. Beaudouin delayed in
transferring plaintiff to a hospital for the initial diagnosis
and surgery, in addition to alleging that [Dr. Beaudouin] failed
to adequately monitor plaintiff’s recovery in between the first
and second surgeries.”

(Urena I at 20.)

Finally, a review of the entire transcript of
plaintiff’s deposition reveals that (1) it was taken by videoconference with government counsel and a Spanish interpreter
located in Brooklyn, New York, and the plaintiff located in the
Butner Federal Correctional Complex in Butner, North Carolina
(Urena Dep. Tr. at 4); (2) the pro se plaintiff started the
deposition without eating or taking his medication for diabetes
(id. at 7-9);

(3) on numerous questions and responses, the

interpreter corrected herself or was corrected by the Assistant
U.S. Attorney, or plaintiff’s responses indicated a lack of

14

comprehension (see, e.g., id. at 16:16-25, 20:12-16, 23:3-10,
27:9-14; 28:2-12, 29:21-30:19); and (4) plaintiff did not hear or
understand some of the questions due either to language issues or
noise (see, e.g., id. at 31:11-15, 31:24-32:4, 32:22-33:8).

As

noted in Urena I, the court cannot appropriately rule that the
pro se plaintiff – an inmate with a limited understanding of
English who was deposed while in prison using a translator via a
video teleconference – has abandoned his claims for Dr.
Beaudouin’s alleged conduct prior to November 3, 2006, based on
his answers to specific questions posed by defense counsel during
plaintiff’s deposition.

Plaintiff’s claims were properly alleged

in the Amended Complaint, and are supported by plaintiff’s
medical records and his testimony.

See Graham v. Lewinski, 848

F.2d 342, 344 (2d Cir. 1988) (“[S]pecial solicitude should be
afforded pro se litigants generally, when confronted with motions
for summary judgment.

Pro se prisoners are, of course, entitled

to at least the same solicitude.” (internal citations omitted)).
Indeed, plaintiff was neither specifically asked whether, nor did
he expressly state during his deposition, that any claims for Dr.
Beaudouin’s conduct prior to November 3, 2006 were mistakenly
brought or that he intended to abandon such claims.
Accordingly, the court finds that Dr. Beaudouin has not
established on reconsideration that there is any basis to alter
the court’s conclusion in Urena I that plaintiff alleged a Bivens

15

claim arising from Dr. Beaudouin’s conduct at MDC prior to
November 3, 2006 and that there is evidence in the record to
support such a claim.

There are thus genuine disputes of

material fact as to whether Dr. Beaudouin was personally involved
in the alleged violation of plaintiff’s constitutional rights
prior to November 3, 2006.
C.

Plaintiff’s Failure to Exhaust Administrative
Remedies

Dr. Beaudouin offers several arguments for why the
court incorrectly concluded that there were genuine disputes of
material fact related to plaintiff’s failure to exhaust his
administrative remedies pursuant to the Prison Litigation Reform
Act (“PLRA”), which is an affirmative defense and not a
jurisdictional predicate.
335, 342 (2d Cir. 2006).

See Handberry v. Thompson, 446 F.3d
None of Dr. Beaudouin’s arguments merit

reconsideration.
First, Dr. Beaudouin argues that even if there was a
link between the BP-8 that plaintiff claims to have filed at MDC
in 2006 and the Regional and Central Office Administrative Remedy
Appeals forms dated October 15, 2007 accompanying plaintiff’s
original complaint, “the later forms would have been deemed
untimely if they were meant to encompass the treatment he
received at the MDC.”

(Beaudouin Mem. at 9.)

An appeal by an

inmate who is not satisfied with the Warden’s response to his
initial filing may be submitted “to the appropriate Regional
16

Director within 20 calendar days of the date the Warden signed
the response.”

28 C.F.R. § 542.15(a) (emphasis added).

There is

no evidence in the current record of any written response by the
Warden to plaintiff’s BP-8, see 28 C.F.R. § 542.18; Amended
Complaint ¶ IV(F)(2), and thus the court cannot determine whether
plaintiff’s filing of the appeals on October 15, 2007 was
untimely.
Second, Dr. Beaudouin argues that the lack of a
response to the alleged grievance that plaintiff filed in 2006
“constitutes a denial, which would have commenced the limitation
period for filing an appeal,” and that the filing of the appeals
dated October 15, 2007 was thus untimely.

(Beaudouin Mem. at 9-

10 (citing 28 C.F.R. § 542.18 (“If the inmate does not receive a
response within the time allotted for reply, including extension,
the inmate may consider the absence of a response to be a denial
at that level.” (emphasis added)).

In support of this

contention, Dr. Beaudouin cites to Williams v. United States, No.
02 Civ. 6523 (HBP), 2004 U.S. Dist. LEXIS 7291 (S.D.N.Y. Apr. 26,
2004), a case finding that a pretrial detainee failed to comply
with the PLRA’s exhaustion requirement by not pursuing the final
administrative remedy available to him – an appeal to the General
Counsel level – when the Regional Director failed to respond to
his grievance within thirty days.

Id. at *27.

In contrast to

the Williams case, here there is evidence that the plaintiff did

17

indeed pursue an appeal at the General Counsel level by filing
the “Central Office Administrative Remedy Appeal” dated October
15, 2007, attached to his original complaint.

(See Complaint at

8); 28 C.F.R. § 542.15(b)(1) (“Appeals to the General Counsel
shall be submitted on the form designed for Central Office
Appeals . . . .”).
Because the court finds that there are genuine disputes
of material fact as to whether plaintiff exhausted administrative
remedies, the court need not decide whether a pro se inmate fails
to exhaust administrative remedies by not deeming the absence of
a response to be a denial, and not filing an appeal within twenty
days after “the time allotted for reply” in the absence of a
response to a BP-8 filed at his prison.

See 28 C.F.R.

§§ 542.15(a), 542.18; Wirth v. Menifee, No. 97 CIV. 8862 (DLC),
1998 U.S. Dist. LEXIS 2670, at *11-12 (S.D.N.Y. Mar. 9, 1998)
(declining to reach the issue of “whether an inmate must file an
appeal with the Central Office when the Regional Director has
failed to respond” to satisfy the PLRA’s exhaustion requirements
(emphasis added)).

The court notes that the language of the

applicable regulation, 28 C.F.R. § 542.18, states that an inmate
“may” consider the absence of a timely response to his
administrative remedy request to be a denial, thereby permitting
an inmate to appeal the absence of a timely response.

This use

of the permissive word, “may,” strongly suggests that an inmate

18

is not required to consider the absence of a timely response to
be a denial, and thus is not required to appeal the absence of a
timely response within a specific time period, if ever, in order
to exhaust administrative remedies.

See O’Connor v. Featherston,

No. 01 Civ. 3251 (HB), 2002 U.S. Dist. LEXIS 7570, at *5-6
(S.D.N.Y. Apr. 29, 2002) (“[S]everal courts have held that an
inmate may nonetheless defeat a motion to dismiss even when the
requirements of administrative remedies have not technically been
exhausted where . . . the state’s time to respond to the
grievance has expired.” (citations omitted)).
Third, Dr. Beaudouin asserts that a “close review” of
the Regional and Central Office Administrative Remedy Appeal
forms accompanying plaintiff’s original complaint demonstrates
that plaintiff “is complaining about the treatment (or lack
thereof) that he was receiving at the [Metropolitan Correctional
Center] in October 2007 and not the treatment he received a year
earlier at the MDC.”

(Beaudouin Mem. at 11.)

Both appeal forms,

however, reference a prior “internal surgery” related to “colon
cancer” - presumably a reference to the November 2, 2006 TURBT
procedure - and the Regional Administrative Remedy Appeal form
further states that plaintiff “was brought to an outside hospital
for colon cancer” and that an “[i]nternal surgery was done
improperly.

Not only is the cancer back, but they operated

incorrectly damaging my kidneys.”

19

(Complaint at 8-9.)

Both

appeal forms also allege violations of the Fourteenth Amendment
for denial of medical treatment to plaintiff.

(Id.)

Plaintiff

testified at his deposition that he did not think he filed any
other complaints or administrative remedy forms about conditions
in the prison, apart from his complaint that he filed with
various institutions about medical treatment in this case.
(Urena Dep. Tr. at 31.)

Although plaintiff also refers in the

appeal forms to the fact that a physician’s assistant told him on
October 1, 2007 that no hospital would admit plaintiff due to a
malpractice suit, the court, resolving all reasonable inferences
and ambiguities in favor of the nonmoving party, finds that the
appeal forms are at least partly related to plaintiff’s treatment
at MDC and his surgical operations in November 2006.
Fourth, Dr. Beaudouin contends that “the Court too
quickly dismisses plaintiff’s initial admission that he did not
exhaust his administrative remedies in this case.”
Mem. at 11.)

(Beaudouin

As previously noted, however, special solicitude

must be afforded to pro se litigants, Graham, 848 F.2d at 344,
particularly when determining whether to bind a pro se litigant
to statements in a submission where there is contrary evidence in
the record.

The admission referenced by Dr. Beaudouin was

included in plaintiff’s response to a discovery motion dated
December 3, 2009 (see ECF No. 57, Motion to Compel/Response at
2), prior to which plaintiff alleged in his original complaint

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that he filed a grievance via a BP-8 form at MDC in 2006 and that
he did not receive a response from MDC (see Complaint ¶ IV(F)).
As noted above, plaintiff also attached the Regional and Central
Office Administrative Remedy Appeal forms to his original
complaint prior to the December 3, 2009 admission.

(Id. at 8-9.)

Dr. Beaudouin’s claim that plaintiff only “began to advance
arguments that he did not receive a response to his BP-8” after
defendants moved for summary judgment (Beaudouin Mem. at 11) is
thus factually inaccurate.
Further, it is well-settled in the Second Circuit that
“the statutory requirement to exhaust administrative remedies
under the PLRA d[oes] not affect a court’s jurisdiction to hear
the case,” and “a litigant’s failure to exhaust in the PLRA
context is an affirmative defense that can be waived.”

Paese v.

Hartford Life & Accident Ins. Co., 449 F.3d 435, 445 (2d Cir.
2006) (citations omitted).

Moreover, the Second Circuit has

recognized that “there are certain ‘special circumstances’ in
which, though administrative remedies may have been available . .
., the prisoner’s failure to comply with administrative
procedural requirements may nevertheless have been justified.”
Giano v. Goord, 380 F.3d 670, 676-78 (2d Cir. 2004) (finding that
plaintiff’s reasonable interpretation of prison regulations
constituted such “special circumstances”).

Because there are

genuine disputes of material fact regarding whether plaintiff

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exhausted his administrative remedies, the court need not address
at this time whether there are any “special circumstances”
justifying plaintiff’s purported failure to exhaust his
administrative remedies, as asserted by Dr. Beaudouin as part of
his affirmative defense.
Accordingly, the court finds that Dr. Beaudouin has not
established on reconsideration that there is any basis to disturb
the court’s conclusion in Urena I that genuine disputes of
material fact exist as to whether plaintiff exhausted his
administrative remedies.
CONCLUSION
Because Dr. Beaudouin does not present on
reconsideration an intervening change in controlling law, the
availability of new evidence, or the need to correct a clear
error or prevent manifest injustice, Cordero v. Astrue, 574 F.
Supp. 2d 373, 379-80 (S.D.N.Y. 2008), the court denies Dr.
Beaudouin’s motion for partial reconsideration of the court’s
denial of summary judgment on plaintiff’s Bivens claim.

The

parties shall contact Magistrate Judge Bloom by April 19, 2012
for the scheduling of a settlement conference.

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The defendant

shall serve a copy of this Memorandum and Order on the pro se
plaintiff by April 9, 2012 and file a certificate of service by
April 10, 2012.

SO ORDERED.
Dated:

April 6, 2012
Brooklyn, New York
__________/s/___________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

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