Colon v. Griffin et al
Filing
153
OPINION & ORDER re: 137 MOTION for Summary Judgment . filed by Ashit Patel, Albany Medical Center, 123 MOTION for Summary Judgment for failure to exhaust administrative remedies with respect to claim against Defendant Dr. Si dorowicz. filed by Wladyslaw Sidorowicz, 139 MOTION to Serve Certificate of Merit. filed by Armando Colon. Since the Court dismisses the Amended Complaint against Medical Defendants, it need not decide Plaintiff's motion for leave to a file a belated certificate of merit pursuant to N.Y.C.P.L.R. § 3012-a(a). Accordingly, Plaintiff's motion is denied as moot. For the foregoing reasons, Defendant Sidorowicz and Medical Defendants' respective motions for summary judgment are GRANTED, and the Amended Complaint is dismissed as against them. The Court's dismissal of Plaintiff's claims against Defendant Sidorowicz is with prejudice. The Court's dismissal of Plaintiff's medical mal practice claims is without prejudice to properly refiling those claims in state court. Plaintiff's motion for leave to serve a late certificate of merit is DENIED as moot. The Clerk of the Court is respectfully directed to terminate the motions at ECF Nos. 123, 137, and 139 and close the case. (Signed by Judge Nelson Stephen Roman on 10/17/2019) (rj) Transmission to Orders and Judgments Clerk for processing.
!1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ARMANDO COLON,
Plaintiff,
-againstNEW YORK STATE DEPARTMENT OF
CORRECTIONS AND COMMUNITY
SUPERVISION; WLADYSLAW SIDOROWICZ,
Sullivan Correctional Facility Medical Director;
SULLIVAN CORRECTIONS OFFICERS "JOHN
and/or JANE DOES" 1, 2, 3, etc.; SULLIVAN
CORRECTIONAL FACILITY MEDICAL
OFFICIALS "JOHN and/or JANE DOES" 1, 2, 3,
etc.; ASHIT PATEL, M.D., all of whom are sued in
their individual capacities, and ALBANY MEDICAL
CENTER,
No. 15 Civ. 7432 (NSR)
OPINION & ORDER
Defendants.
NELSON S. ROMAN, United States District Judge
Plaintiff Armando Colon brings this action pursuant to, inter alia, 42 U.S.C. § 1983
("Section 1983") and New York state tort law, against the New York State Department of
Corrections and Community Supervision ("DOCCS"), 1 Sullivan Correctional Facility
("Sullivan") Medical Director Wladyslaw Sidorowicz, unknown "John or Jane Doe" Sullivan
Correctional Officers ("Sullivan CO Does"), and unknown "John or Jane Doe" Sullivan Medical
Officials ("Sullivan Medical Does") (collectively, "State Defendants"); Albany Medical Center
("AMC"), and Ashit Patel, M.D. (collectively, "Medical Defendants"). Presently before the
Court are (1) Defendant Sidorowicz's motion for summary judgment pursuant to Fed. R. Civ. P.
56 dismissing Plaintiffs Section 1983 claims as against him, (ECF No. 123), (2) Medical
1
Pursuant to the Court's Opinion and Order granting in part and denying in part Defendants' motions to
dismiss, dated September 13, 2019, no claims remain against DOCCS. (See ECF No. 79.)
Defendants’ motion for summary judgment pursuant to Fed. R. Civ. P. 56 dismissing Plaintiff’s
medical malpractice claims against them, (ECF No. 137), and (3) Plaintiff’s motion for leave to
serve a late certificate of merit, (ECF No. 139). For the reasons that follow, Defendants’ motions
for summary judgment are GRANTED, and Plaintiff’s motion for leave to serve a late certificate
of merit is DENIED.
BACKGROUND
I.
Factual Allegations
The following facts are taken from the parties’ respective Rule 56.1 Statements, the
pleadings, and a review of the record. The Court notes that a significant amount of discovery as
to the factual allegations supporting Plaintiff’s claims remains outstanding. (See Declaration of
Adam T. Mandell, Esq. in Support of Medical Defendants’ Summary Judgment Motion
(“Mandell Decl.”) (ECF No. 138) ¶ 10.)
a. Plaintiff’s Assault and Surgeries
Plaintiff, who at all relevant times was an incarcerated inmate at Sullivan Correctional
Facility, alleges that on September 22, 2013, he was assaulted by an unknown inmate as he was
being escorted from his cell in the Sensorial Disabled Unit to the Sullivan infirmary. (Am.
Compl. (ECF No. 41) ¶ 2.) 2 At the time of the incident, Plaintiff, who is legally blind, was being
escorted by Sullivan Corrections Officer Juan Martinez and an inmate at Sullivan, Martin Hodge,
who “assisted visually impaired inmates through the facility.” (Id.) As Plaintiff was being
2
The Court notes that Medical Defendants continue to dispute most of the factual recitation in the
Amended Complaint. (Medical Defendants’ Reply to Plaintiff’s Counter-Statement Pursuant to Local Rule 5.1
(ECF No. 148).)
2
escorted to the infirmary, he was “approached, punched, and knocked unconscious by an
unknown incarcerated person.” (Id. ¶ 25.)
As a result of the attack, Plaintiff sustained a number of injuries, including multiple facial
fractures, and was taken to Catskill General Hospital (“Catskill”). (Id. ¶¶ 26–28.) After
receiving a CT scan at Catskill, Plaintiff was transferred to Defendant Albany Medical Center.
(Id. ¶ 29.) Doctors at AMC informed Plaintiff that his injuries would require surgery, but the
surgery could not be performed until the swelling to his face was reduced. (Id. ¶ 31.) Plaintiff
was then transferred back to Sullivan.
Plaintiff returned to AMC on September 27, 2013, five days after the incident, so that
Defendant Patel could perform facial reconstructive surgery. (Id. ¶ 34.) The reconstructive
surgery included “implantation in Plaintiff’s right eye-socket and right cheekbone.” (Id.) The
following day, Plaintiff was discharged from AMC and returned to the Sullivan infirmary, where
he stayed for an extended period of time. (Id. ¶ 35.)
Plaintiff alleges that he complained to Defendant Sidorowicz several weeks after the
surgery about “excruciating pain on the right side of his face, swelling to the right side of his
face, and difficulty chewing food on the right side of his mouth.” (Id. ¶ 37.) Two months after
his surgery, in December 2013, Plaintiff was transferred to Coxsackie Correctional Facility’s
Regional Medical Unit to be examined by Dr. Richard Agag. (Id. ¶¶ 39–40.) During that
examination, Dr. Agag discovered that the metallic hardware installed by Patel in Plaintiff’s
cheekbone “had ripped through the upper right side of Plaintiff’s mouth.” (Id. ¶ 41.) Dr. Agag
then recommended an emergency surgery in order to remove the protruding hardware. (Id. ¶ 42.)
On January 29, 2014, Defendant Patel performed a second surgery to remove the
hardware. (Id. ¶ 43.) After that surgery, Plaintiff contends that he continued to complain to
3
Sullivan Corrections Officers and Medical Officers, including Defendant Sidorowicz, about
“excruciating pain on the right side of his face, swelling to the right side of his face, and
difficulty chewing food on the right side of his mouth.” (Id. ¶ 45.) In April 2014, Plaintiff
returned to AMC where he received a CT scan and, allegedly, was informed by Defendant
Sidorowicz that a bone inside his mouth was “exposed and had become infected.” (Id. ¶¶ 47–
48.)
Thereafter, on May 10, 2014, a third surgery was performed by Defendant Patel where he
covered the exposed bone inside Plaintiff’s mouth with a skin graft. (Id. ¶ 50.) Several days
later, Plaintiff was discharged and returned to Sullivan. (Id. ¶ 51.) After the May 2014 surgery,
Plaintiff underwent two additional oral surgeries in order to remove excessive and overlapping
tissue inside of his mouth. (Id. ¶ 52.) Plaintiff alleges that to this day he continues to
“experience extreme pain on the right side of his face and has difficulty chewing food on the
right side of his mouth.” (Id. ¶ 53.)
b. Plaintiff’s Inmate Grievance Filings
Sullivan is a correctional facility maintained by the New York State Department of
Corrections and Community Supervision (“DOCCS”). (Defendant Sidorowicz’s Rule 56.1
Statement (“State Defs. 56.1”) (ECF No. 126) ¶ 2.) Pursuant to DOCCS Directive #4040, 7 N.Y.
Comp. Codes R. & Regs. § 701, inmates in DOCCS facilities are permitted to file grievances
with the facility’s Inmate Grievance Resolution (“IGR”) Committee (“IGRC”), appeal an IGRC
decision to the Inmate Grievance Resolution Program (“IGRP” or “IGP”) Superintendent of the
facility (the “Superintendent”), and appeal the Superintendent’s decision to the Central Office
Review Committee (“CORC”). (Declaration of Shelley Mallozzi (“Mallozzi Decl.”) (ECF No.
127) ¶ 2.) Plaintiff was aware of the foregoing procedures and, in fact, filed and appealed more
4
than 300 grievances to CORC over the course of his incarceration between February 1992
through December 2017. (State Defs. 56.1 ¶¶ 5,7.)
i. Grievance 21235
On or about March 5, 2014, Plaintiff filed Grievance SUL 21235/14, dated February 27,
2014 (“Grievance 21235”). (State Defs. 56.1 ¶ 8; Declaration of Bruce J. Turkle in Support of
Defendant Sidorowicz’s Motion for Summary Judgment (“Turkle Decl.”) (ECF No. 124) Ex. 3.)
As relevant to this case, Plaintiff made allegations in Grievance 21235 concerning complications
arising from his first two facial surgeries with Defendant Patel. (Turkle Decl. Ex. 3 at Bates No.
COLON 00908–09.) Specifically, Plaintiff recounted his first facial reconstruction surgery, Dr.
Agag’s discovery that the hardware implanted in Plaintiff’s palate had caused an opening in
Plaintiff’s mouth, and his second surgery. (Id. at Bates No. COLON 00908.) Plaintiff stated that
the second surgery did not adequately address the opening in his mouth, and that he continued to
experience drainage through his right nostril. (Id.) He further opined, “[T]his medical mishap
has obviously caused me a great deal of mental anguish and anxiety attacks including headaches,
nausea, dizzy spells and pain to the right side of my face which remains swollen for nearly half a
year.” (Id. at Bates No. COLON 00909.) In the section of Grievance 21235 entitled “Action
Requested by Inmate,” Plaintiff sought a referral from the dentist at Sullivan to an oral surgeon
at Sing Sing Correctional Facility “as was previously attempted.” (Id.) In the alternative,
Plaintiff sought a referral from Dr. Patel to a more knowledgeable reconstructive surgeon in the
New York City area for the purpose of closing the opening in his palate and “whatever the
reconstructive surgeon deems appropriate with the approval of the facility health service director
Dr. Wladyslaw Sidorowicz.” (Id.)
5
The IGRC responded to Grievance 21235, stating that Plaintiff’s medical concerns could
be addressed with a specialist “as he was provided for follow-up with reconstruction plastic
surgeon.” (Id. at Bates No. COLON 00905.) Plaintiff disagreed with the response and appealed
to the Superintendent. (Id.) On March 18, 2014, the Superintendent accepted Grievance 21235
to the extent of stating, “Investigation reveals grievant is receiving proper medical care at this
facility and is approved for outside specialist medical care. Grievant is advised to address his
medical concerns with facility and/or outside specialist.” (Id. at Bates No. COLON 00912.)
Plaintiff timely appealed the Superintendent’s disposition to CORC. (Id.) On August 6, 2014,
CORC upheld the determination of the Superintendent. (Id. at Bates No. COLON 00913.)
CORC explained, inter alia, that with respect to the appeal, Plaintiff had not presented
“sufficient evidence to substantiate improper medical care or malfeasance by staff.” (Id.) CORC
advised Plaintiff to address concerns regarding outside medical care to that entity, mental health
issues to the Office of Mental Health (“OMH”), and medical concerns via sick call. (Id.) CORC
rejected Plaintiff’s complaints regarding medical care prior to 2014 as untimely. (Id.)
ii.
Grievance 21389
Following his third surgery, on or about August 7, 2014, Plaintiff filed Grievance SUL
21389/14, dated August 5, 2014 (“Grievance 21389”). (State Defs.’ 56.1 ¶ 14; Turkle Decl. Ex.
5.) Grievance 21389 included, in relevant part, further allegations related to Plaintiff’s assault
and the surgeries performed by Defendant Patel. (Turkle Decl. Ex. 5 at Bates No. COLON
00944–45.) Plaintiff noted that in May of 2014, he underwent a third surgery “as a result of [Dr.
Patel’s] failure to notice and close the opening in Grievant’s right-side palate area.” (Id. at Bates
No. COLON 00945.) Plaintiff asserted that such failure “fell far below professional medical
standards” and “borders on medical negligence and malpractice.” (Id.) He further complained
6
that Dr. Patel’s actions resulted in a serious bone infection and continuous excruciating pain.”
(Id.) Plaintiff stated that the right side of his face continued to be “swollen, non-symmetrical and
distorted, and causing Grievant bouts of depression and anxiety attacks making same known to
Mental Health Services Personnel to no avail.” (Id.) In the section entitled “Action Requested
by Inmate,” Plaintiff sought a fourth surgical procedure to correct his right-side facial features,
which he said “remain[ed] non-symmetrical and distorted.” (Id.) In the alternative, Plaintiff
sought a recommendation from Dr. Patel and Dr. Sidorowicz that Plaintiff “be transported to a
New York City area hospital that specializes in repairing and correcting facial features.” (Id.)
The IGRC responded to Grievance 21389, stating, inter alia, with respect to Plaintiff’s
face-related complaints that Plaintiff’s medical concerns could be addressed with a specialist “as
he was provided for follow-up with reconstruction plastic surgeon.” (Id. at Bates No. COLON
00947.) The Grievance was forwarded to the Superintendent for action by the Grievance Clerk.
(Id.) On August 26, 2014, the Superintendent accepted Grievance 21389, again, to the extent of
stating, “Investigation reveals grievant is receiving proper medical care at this facility. Grievant
is approved for surgery and will be evaluated for medical needs again after surgery is
completed.” (Id. at Bates No. COLON 00946.) Plaintiff timely appealed the Superintendent’s
disposition to CORC. (Id.) On January 21, 2015, CORC rejected Plaintiff’s medical complaints
through May 2014 as untimely, and otherwise upheld the determination of the Superintendent.
(Id. at Bates No. COLON 00948.) CORC again explained, inter alia, that with respect to the
appeal, Plaintiff had not presented “sufficient evidence to substantiate improper medical care or
malfeasance by staff,” and advised Plaintiff to address concerns regarding outside medical care
to that entity, mental health issues to OMH, and medical concerns via sick call. (Id.)
7
iii.
Other Grievances
Other than Grievances 21235 and 21389, Plaintiff admits that he did not file any other
inmate grievances relating to medical treatment for his face and jaw injuries sustained as a result
of the September 22, 2013, assault prior to commencing this action. (State Defs. 56.1¶ 25;
Plaintiff’s Rule 56.1 Counter-Statement (ECF No. 130) ¶ 25.) Nonetheless, in his Memorandum
of Law in Opposition to Defendant Sidorowicz’s Motion for Summary Judgment, Plaintiff
references a third grievance filed on April 27, 2015, “that further described his ongoing serious
medical condition . . ., [wherein he alleged] that even after three reconstructive surgeries, the
‘right side of his face continues [sic] swollen and sore causing grievant to experience periodic
anxiety attacks and many sleepless nights.’” (Plaintiff’s Memorandum in Opposition to
Defendant Sidorowicz’s Motion for Summary Judgment (“Pl. Mem. Opp. Sidorowicz Mot.”)
(ECF No. 129) 7 (quoting Turkle Decl. Ex. 10 at Bates No. COLON 01046).). Grievance SUL
21696/15 (“Grievance 21696”) declared that Plaintiff’s medical issues arising from his
reconstructive surgeries “need to be addressed and resolved by reconstructive surgeons at AMC,
or elsewhere.” (Turkle Decl. Ex. 10 at Bates No. COLON 01046.) Plaintiff asked that
Defendant Sidorowicz “seriously consider and request for approval and medical intervention
from DOCCS Central Office Division of Health Services and evaluate grievant for possible
corrective surgery.” (Id. at Bates No. COLON 01047.)
Grievance 21696 was denied by the IGRC and the Superintendent, and Plaintiff appealed
to CORC. (Id. at Bates No. COLON 01048–51.) On February 10, 2016, after the
commencement of this action, CORC rejected as untimely Plaintiff’s claims prior to 2015 and
otherwise upheld the determination of the Superintendent. (Id. at Bates No. COLON 01045.)
8
II.
Procedural History
Plaintiff commenced this lawsuit in forma pauperis and pro se on September 18, 2015.
(See Compl., ECF No. 2.) Counsel appeared on his behalf on February 16, 2016. (ECF No. 34.)
Plaintiff, assisted by counsel, amended his complaint on August 15, 2016. (See Am. Compl.,
ECF No. 41.) State Defendants and Medical Defendants subsequently moved to dismiss the
Amended Complaint pursuant to Rules 12(b)(1) or 12(b)(6). (See ECF Nos. 58 (State
Defendants), 68 (Medical Defendants).)
By Opinion and Order dated September 15, 2017 (“9/15/17 Order”), the Court granted
Defendants’ motions to dismiss in part and denied them in part. (ECF No. 79.) The Court
dismissed Plaintiff’s federal claims brought against the State Defendants pursuant to Title II of
the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., and the Rehabilitation Act of
1973, 29 U.S.C. §§ 701 et seq., for failure to state a claim. (9/15/17 Order 22.) The Court also
dismissed Plaintiff’s state law claims as asserted against the State Defendants pursuant to New
York Correction Law § 24 for lack of subject-matter jurisdiction. (Id.) However, Plaintiff’s
Section 1983 claims alleging violations of his Eighth and Fourteenth Amendment rights by
Sidorowicz and the Sullivan Medical Does survived in their entirety. (Id.) As to the Medical
Defendants, while the Court dismissed Plaintiff’s claim against them for ordinary negligence as
duplicative of Plaintiff’s medical malpractice claim, the medical malpractice claim and
Plaintiff’s request for punitive damages survived. (Id.) The Court determined that it could, and
did, exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a) over Plaintiff’s state law
claims against Medical Defendants. (Id. 19.) After the 9/15/17 Order, the only remaining claims
in this action are (1) Plaintiff’s Section 1983 claim against Defendant Sidorowicz and the
9
Sullivan Medical Does, who have not been identified or served, and (2) Plaintiff’s medical
malpractice claim against the Medical Defendants.
In the 9/15/17 Order, the Court declined to consider documentary evidence submitted by
the State Defendants on the issue of whether Plaintiff had exhausted his claims through the
prison grievance process prior to bringing a suit in federal court, as required under the Prison
Litigation Reform Act of 1995 (“PLRA”). (Id. 11.) The Court noted that Defendants would be
permitted to request that discovery commence with issues such as exhaustion, and that they
could seek leave to move for summary judgment on that discrete issue, should such a motion be
non-frivolous, once that portion of the discovery process had been completed. (Id. 11 n.6.)
Accordingly, by letter dated May 2, 2018, State Defendants sought leave to move for
summary judgment dismissing Plaintiff’s Section 1983 claims against Defendant Sidorowcz on
the grounds that Plaintiff failed to exhaust such claims. (ECF No. 111.) Briefing of the motion
was completed on February 1, 2019. (ECF Nos. 123–132.) On March 5, 2019, Medical
Defendants separately moved for summary judgment seeking dismissal of Plaintiff’s medical
malpractice claims against them on jurisdictional grounds, should the Court grant State
Defendants’ motion and dismiss the only federal cause of action remaining in this case. (ECF
No. 137.) Also on March 5, 2019, Plaintiff moved to serve a late certificate of merit on Medical
Defendants in connection with his state law medical malpractice claim. (ECF No. 139.)
LEGAL STANDARDS
I.
Summary Judgment
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is
appropriate “if the movant shows that there is no genuine dispute as to any material fact and the
10
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party
bears the initial burden of pointing to evidence in the record, “including depositions, documents .
. . [and] affidavits or declarations,” see Fed. R. Civ. P. 56(c)(1)(A), “which it believes
demonstrate[s] the absence of a genuine issue of material fact,” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). The moving party may support an assertion that there is no genuine
dispute of a particular fact by “showing . . . that [the] adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(B). If the moving party fulfills its
preliminary burden, the onus shifts to the nonmoving party to raise the existence of a genuine
issue of material fact. Fed. R. Civ. P. 56(c)(1)(A); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986).
A genuine dispute of material fact exists when “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; accord Gen.
Star Nat’ l Ins. Co. v. Universal Fabricators, Inc., 585 F.3d 662, 669 (2d Cir. 2009). Courts
must “draw all rational inferences in the non-movant’ s favor,” while reviewing the record.
Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). Importantly, “the judge’ s function is not himself to
weigh the evidence and determine the truth of the matter,” nor is it to determine a witness’ s
credibility. Id. at 249. Rather, “the inquiry performed is the threshold inquiry of determining
whether there is the need for a trial.” Id. at 250. Summary judgment should be granted when a
party “fails to make a showing sufficient to establish the existence of an element essential to that
party’ s case.” Celotex, 477 U.S. at 322.
Critically, in an opposition to a motion for summary judgment “[s]tatements that are
devoid of any specifics, but replete with conclusions” will not suffice. Bickerstaff v. Vassar
11
Coll., 196 F.3d 435, 452 (2d Cir. 1999); see also Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986) (nonmoving party “must do more than simply show that there is
some metaphysical doubt as to the material facts”); FDIC v. Great Am. Ins. Co., 607 F.3d 288,
292 (2d Cir. 2010) (nonmoving party “may not rely on conclusory allegations or unsubstantiated
speculation” (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)).
II.
The New York Certificate of Merit Requirement
Under New York law, “[i]n any action for medical . . . malpractice, the complaint shall be
accompanied by a certificate, executed by the attorney for the plaintiff, declaring that: (1) the
attorney has reviewed the facts of the case and has consulted with at least one physician . . . who
is licensed to practice in this state or any other state and who the attorney reasonably believes is
knowledgeable in the relevant issues involved in the particular action, and that the attorney has
concluded on the basis of such review and consultation that there is a reasonable basis for the
commencement of such action . . .” N.Y. C.P.L.R. § 3012-a(a)(1). This requirement is
inapplicable to plaintiffs who are proceeding pro se. Id. § 3012-a(f).
The Second Circuit has not yet determined whether the requirement of a certificate of
merit in a medical malpractice action is a substantive or procedural requirement. However, a
number of district courts in this Circuit have held that “[a] state statute requiring a certificate of
merit—such as N.Y. C.P.L.R. § 3012-a(a)—is substantive law that applies in a federal diversity
action.” Crowhurst v. Szczucki, 16-cv-00182(JGK), 2017 WL 519262, at *3 (S.D.N.Y. Feb. 8,
2017) (citing Finnegan v. Univ. of Rochester Med. Ctr., 180 F.R.D. 247, 249 (W.D.N.Y. 1998));
see E.L.A. v. Abbott House, 16-cv-1688(RMB), 2018 WL 3104631, at *5 (S.D.N.Y. March 27,
2018); Sanchez v. New York Correct Care Solutions Med. Servs., P.C., 16-cv-6826(CJS), 2018
WL 6510759, at *12 (W.D.N.Y. Dec. 11, 2018); see also Frierson v. United States, 5:17-cv-247,
12
2019 WL 2601692, at *2 (D. Vt. June 25, 2019) (holding that similar Vermont statute requiring
filing of certificate of merit with complaint in medical malpractice actions created a substantive
requirement equally applicable in the context of medical malpractice claims under the Federal
Tort Claims Act).
DISCUSSION
I.
Defendant Sidorowicz’s Motion
Plaintiff alleges that he made complaints to Defendant Sidorowicz and the Sullivan
Medical Does following his facial surgeries, and that their “response to Plaintiff’s complaints of
serious medical needs were not reasonable to the pain and suffering he experienced.” (Am.
Compl. ¶¶ 37–38, 45–46.) Based on the foregoing, Plaintiff states that Defendant Sidorowicz
and the Sullivan Medical Does were “deliberately indifferent to the physical and emotional pain
and suffering Plaintiff experienced.” (Id. ¶ 57.) These Defendants’ alleged deliberate
indifference forms the basis of Plaintiff’s claim that he was deprived of his rights under the
Eighth and Fourteenth Amendment, in violation of Section 1983. (Id. ¶¶ 58–59.) Defendant
Sidorowicz seeks summary judgment dismissing Plaintiff’s federal claims under Section 1983
against him on the ground that Plaintiff failed to exhaust his claims through the prison grievance
process prior to bringing a suit in federal court. Plaintiff argues (1) that by filing and appealing
Grievances 21235, 21389, and 21696, he exhausted his administrative remedies, and (2) that to
the extent he did not exhaust, he must be excused because no grievance procedure was available
to him. For the reasons that follow, the Court grants Defendant Sidorowicz’s motion.
13
a. Exhaustion within DOCCS’ Inmate Grievance System
Under the PLRA, “[n]o action shall be brought with respect to prison conditions under
[42 U.S.C. § 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. § 1997e(a). “The PLRA’s exhaustion requirement ‘applies to all inmate suits about
prison life, whether they involve general circumstances or particular episodes, and whether they
allege excessive force or some other wrong.’” Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004)
(quoting Porter v. Nussle, 534 U.S. 516, 532 (2002)).
Exhausting all remedies “means using all steps that the agency holds out, and doing so
properly (so that the agency addresses the issues on the merits).” Washington v. Chaboty, No. 09
Civ. 9199, 2015 WL 1439348, at *6 (S.D.N.Y. Mar. 30, 2015) (quoting Hernandez v. Coffey,
582 F.3d 303, 305 (2d Cir. 2009) (internal quotation marks and citations omitted). “[B]ecause ‘it
is the prison’s requirements, and not the PLRA, that define the boundaries of proper
exhaustion[,] . . . [t]he exhaustion inquiry . . . requires that [the court] look at the state prison
procedures and the prisoner’s grievance to determine whether the prisoner has complied with
those procedures.’” Espinal v. Goord, 558 F.3d 119, 124 (2d Cir. 2009) (quoting Jones v. Bock,
549 U.S. 199, 218 (2007)). Similarly, “[t]he level of detail necessary in a grievance to comply
with the grievance procedures will vary from system to system and claim to claim,” because “it
is the prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.”
Jones, 549 U.S. at 218. In order to properly exhaust his claims, a plaintiff must invoke all
available administrative mechanisms, including appeals, “through the highest level for each
claim.” Varela v. Demmon, 491 F. Supp. 2d 442, 447 (S.D.N.Y. 2007). An inmate’s filing of a
14
grievance rejected as untimely does not constitute proper exhaustion. Woodford v. Ngo, 548
U.S. 81, 83–84 (2006).
A court may not excuse a failure to exhaust, even to take “special circumstances” into
account. Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). However, a prisoner cannot be required to
exhaust administrative remedies that are not available to him. Id. at 1858. “[A]n inmate is
required to exhaust those, but only those, grievance procedures that are ‘capable of use’ to obtain
‘some relief for the action complained of.’” Id. at 1859 (quoting Booth v. Churner, 532 U.S.
731, 738 (2001)). An administrative procedure is “unavailable” in this respect (1) when it
operates as a simple dead end, with officers unable or consistently unwilling to provide any relief
to aggrieved inmates; (2) when it is so opaque that no ordinary prisoner can discern or navigate
it; and (3) when prison administrators thwart inmates from taking advantage of a grievance
process through machination, misrepresentation, or intimidation. Ross, 136 S. Ct. at 1859–60;
see also Williams v. Priatno, 829 F.3d 118, 123 n.2 (2d Cir. 2016) (opining that the foregoing
circumstances “do not appear to be exhaustive,” but declining to describe what other
circumstances might render an otherwise available administrative remedy actually incapable of
use).
It is the defendant’s burden to demonstrate that a plaintiff’s claim is not properly
exhausted. Key v. Toussaint, 660 F. Supp. 2d 518, 523 (S.D.N.Y. 2009). Where a prisoner has
failed to exhaust some, but not all, of the claims included in the complaint, the PLRA does not
require dismissal of the entire complaint. Tafari v. Hues, 539 F. Supp. 2d 694, 697 (S.D.N.Y.
2008) (citing Jones, 549 U.S. at 219–24); see also Arnold v. Goetz, 245 F. Supp. 2d 527, 531
(S.D.N.Y. 2003) (“the PLRA’s exhaustion requirement is not jurisdictional in nature”); accord
Richardson v. Goord, 347 F.3d 431, 434 (2d Cir. 2003). Instead, the court dismisses the
15
unexhausted claims and proceeds to adjudicate the ones that are exhausted. Jones, 549 U.S. at
224.
For purposes of the PLRA, a person detained or incarcerated at a DOCCS facility must
exhaust all of the steps of the IGRP. See Robinson v. Henschel, No. 10 Civ. 6212, 2014 WL
1257287, at *10 (S.D.N.Y. Mar. 26, 2014) (“the PLRA requires complete exhaustion”) (internal
quotation marks and citations omitted). As the Court has noted, the IGRP provides a three-tiered
process for adjudicating inmate complaints: (1) the prisoner files a grievance with the IGRC, (2)
the prisoner may appeal an adverse decision by the IGRC to the Superintendent of the facility,
and (3) the prisoner may appeal an adverse decision by the Superintendent to CORC. See
Espinal, 558 F.3d at 125; see also 7 N.Y. Comp. Codes R. & Regs. § 701.5; but see Williams,
829 F.3d at 126 (“the process to appeal an unfiled and unanswered grievance is prohibitively
opaque, such that no inmate could actually make use of it,” making that portion of the process,
“practically speaking, incapable of use” pursuant to the Supreme Court’s guidance in Ross, 136
S. Ct. at 1859). Grievances must be filed within 21 days of the complained of conduct. N.Y.
Comp. Codes R. & Regs., tit. 7, § 701.5(a)(1).
The IGP regulations provide that a grievance submitted by an inmate should “contain a
concise, specific description of the problem and the action requested and indicate what actions
grievant has taken to resolve the complaint.” N.Y. Comp. Codes R. & Regs., tit. 7, §
701.5(a)(2). “The mere fact that plaintiff has filed some grievance, and fully appealed all
decisions on that grievance, does not automatically mean that he can now sue anyone who was in
any way connected with the events giving rise to that grievance.” Turner v. Goord, 376 F. Supp.
2d 321, 324 (W.D.N.Y. 2005). However, “[b]ecause New York’s IGP does not articulate an
identification requirement, it is plain that a New York State prisoner is not required to name
16
responsible parties in a grievance in order to exhaust administrative remedies.” Espinal, 558
F.3d at 126. Moreover, “a claim may be exhausted when it is closely related to, but not
explicitly mentioned in an exhausted grievance.” Barnes v. Annucci, No. 9:15-CV-0777
(GLS/DEP), 2019 WL 1387460, at *10 (N.D.N.Y. March 12, 2019) (quoting Simmons v.
Robinson, No. 07-CV-7383, 2011 WL 31066, *4 (S.D.N.Y. Jan. 4, 2011)). Ultimately, in order
to exhaust under the PLRA, a prisoner must allege facts sufficient to allow DOCCS to take
appropriate responsive measures. See Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004),
overruled on other grounds by Woodford, 548 U.S. 81; see also Espinal, 558 F.3d at 126 (“The
point is that prison officials ha[ve] the necessary information to investigate the complaints and
the opportunity to learn which officers were involved in the alleged incident.”); Brownell v.
Krom, 446 F.3d 305, 310 (2d Cir. 2006) (noting that a grievance “may not be so vague as to
preclude prison officials from taking appropriate measures to resolve the complaint internally”).
b. Availability of Administrative Remedies to Plaintiff
As a preliminary matter, the Court rejects Plaintiff’s argument that he was excused from
exhausting his administrative remedies because the DOCCS grievance process was not available
to him. (See Pl. Mem. Opp. Sidorowicz Mot. 9–10.) There is no record evidence that the IGP is
a “simple dead end” and “unable” to provide relief to Plaintiff, Ross, 136 S. Ct. at 1859, or that it
is “so opaque that it” is “incapable of use” such that “no ordinary prisoner can discern or
navigate it,” id. Plaintiff presents no serious argument to the contrary. Rather, Plaintiff asserts
(1) that he was physically unable to file grievances while he recovered from his first
reconstructive surgery in the Sullivan infirmary, (Pl. Mem. Opp. Sidorowicz Mot. 10), and (2)
that he was thwarted from taking advantage of the IGP by the machinations of Gary Terbush,
Sullivan’s IGRP coordinator, (id. 9–10).
17
As to Plaintiff’s first assertion, Plaintiff, who is legally blind, testified that he relied on
others to draft his grievances for him. (Declaration of Keith Szczepanski in Opposition to
Defendant Sidorowicz’s Motion for Summary Judgment (“Szczepanski Decl. Opp. Sidorowicz
Mot.”) Ex. 2 at 27, 55, 192.) Law clerks were purportedly unavailable to Plaintiff while he was
in the Sullivan infirmary, and no other inmate was available to assist Plaintiff in drafting his
grievances. (Id. at 27, 55.) Plaintiff does not explain why law clerks could not be made
available in the infirmary or state that he ever requested one in order to file a grievance while
confined to the infirmary. In any event, Plaintiff averred in his deposition that he was released
from the infirmary in late October or early November of 2013, and that he could not file a
grievance until after that. (Id. at 55–56.) However, the Court’s review of administrative records
submitted by Defendant Sidorowicz reveals that Plaintiff was able to, and did in fact, file a
grievance as early as October 4, 2013, approximately one week after his surgery. (Mallozzi
Decl. Ex. B at Bates No. COLON 00819.) 3 Moreover, even if Plaintiff’s assertion that he could
not file grievances from the infirmary were true, he provides no explanation as to why he waited
until nearly five months after his release, after a second facial surgery had been performed, to
formally complain about the medical treatment he received following his first facial surgery.
(See Turkle Decl. Ex. 3.)
Plaintiff also states that he attempted to file “numerous” grievances regarding his medical
complaints and Defendant Sidorowicz’s alleged deliberate indifference to them, but was
precluded from doing so by Gary Terbush, Sullivan’s IGRP coordinator, who allegedly refused
to accept Plaintiff’s grievances and would regularly “trash” grievances made against medical or
correctional staff. (Szczepanski Decl. Opp. Sidorowicz Mot. Ex. 2 at 27–28.) On February 12,
3
The October 4, 2013, grievance is entitled “Not Provided with Mobility Guidance” in the IGP records.
(Mallozzi Decl. Ex. B at Bates No. COLON 00819.)
18
2015, Plaintiff filed Grievance SUL 21579/15 (“Grievance 21579”), complaining that Terbush
maintained an “unofficial custom, policy and practice of not allowing the inmate grievance clerk
to process inmate grievance complaints that are not to his liking.” (Szczepanski Decl. Opp.
Sidorowicz Mot. Ex. 1 at 2.) Plaintiff did not elaborate on this assertion, but included a list of
five other inmates that he alleged were “just a few of Mr. TerBush’s many victims.” (Id.)
However, neither in Grievance 21579 nor at his deposition does Plaintiff identify a single
specific grievance, on any subject, that was not processed by Terbush. (See Reply Declaration of
Bruce J. Turkle in Further Support of Defendant Sidorowicz’s Motion for Summary Judgment
Ex. 1 78–80, 84, 159, 160, 162–63.)
Plaintiff’s allegations are not rendered more convincing by the fact that Plaintiff properly
adhered to the IGP’s exhaustion requirements in some 320 other instances, (Mallozzi Decl. ¶ 8),
both before and after the period at issue in this action, in which he filed and fully appealed
grievances to CORC. See King v. Puershner, No. 17-CV-1373 (KMK), 2019 WL 4519692, at
*9–*10 (S.D.N.Y. Sept. 19, 2019) (holding that there was no dispute of fact as to whether
grievance process was “available” to plaintiff where he successfully filed and appealed to CORC
48 other grievances during his time in prison); Davis v. Grant, No. 15-CV-5359 (KMK), 2019
WL 498277, at *9–*10 (S.D.N.Y. Feb. 8, 2019) (holding that plaintiff’s assertions that his
grievances and appeals were somehow lost or destroyed were insufficient to establish a genuine
issue of fact as to availability of IGP where plaintiff had successfully used IGP on 39 previous
occasions); Mckinney v. Prack, 170 F. Supp. 3d 510, 517 (W.D.N.Y. 2016) (holding that
plaintiff’s allegation that IGP Deputy Superintendent refused to process his grievances did not
create issue of fact as to availability of IGP where the record showed that he appealed and
exhausted approximately 20 grievances during his 29 years of incarceration). From the date of
19
his assault, September 22, 2013, through the date when he commenced this action, September
18, 2015, alone, plaintiff filed and fully appealed 27 grievances to CORC. (Mallozzi Decl. ¶ 10.)
Plaintiff’s self-serving and unsupported assertion that he filed additional grievances that
Terbush refused to process is insufficient to establish a genuine issue of material fact as to the
availability of the IGP to Plaintiff. See Davis, 2019 WL 498277, at *10 (plaintiff’s statements
that his grievance was lost or destroyed, which stood alone and unsupported, did not warrant
exception to exhaustion requirement); Engles v. Jones, No. 13-CV-6461, 2018 WL 6832085, at
*10 (W.D.N.Y. Dec. 28, 2018) (granting summary judgment to defendants for failure to exhaust
where there was no record of plaintiff filing his grievance and plaintiff merely alleged without
any documentary support that his grievance was lost or destroyed); Scott v. Kastner-Smith, 298
F. Supp. 3d 545, 555 (W.D.N.Y. 2018) (“[C]ourts have consistently held . . . that an inmate’s
general claim that his grievance was lost or destroyed does not excuse the exhaustion
requirement.”). In addition, even assuming that Plaintiff filed other grievances that were not
processed, he “could have re-filed any grievance or sought to appeal his grievance when he did
not receive a favorable response” after filing his initial grievance. Mckinney, 170 F. Supp. 3d at
517; see King, 2019 WL 4519692, at *9; Parker v. McIntyre, No. 11-CV-865, 2014 WL
5432153, at *3 (W.D.N.Y. Oct. 27, 2014); see also N.Y. Comp. Codes R. & Regs., tit. 7, §
701.8(g) (“If the superintendent fails to respond within the required 25 calendar day time limit
the grievant may appeal his/her grievance to CORC.”).
Considering Plaintiff’s unsupported allegations of interference by Superintendent
Terbush, along with evidence that Plaintiff has successfully used the IGP to its fullest extent on
320 other occasions, and Plaintiff’s failure to re-file or appeal the purportedly “trashed”
grievances, the Court concludes that no exception to the exhaustion requirement applies.
20
c. Exhaustion of Section 1983 Claims
The only question remaining is whether Plaintiff exhausted his claims against Defendant
Sidorowicz by filing Grievances 21235, 21389, and 21696.
As to the first of these, Plaintiff contends that Grievance 21235, dated February 27, 2014,
“documented the continued serious medical conditions ignored by Sullivan’s medical staff,
including Dr. Sidorowicz.” (Pl. Mem. Opp. Sidorowicz Mot. 6.) However, the issue before the
Court is not whether Plaintiff merely documented his serious medical condition, but whether he
alleged sufficient facts with respect to the alleged inadequate medical treatment provided by
Sullivan medical staff to allow DOCCS to take appropriate responsive measures. Grievance
21235 describes Plaintiff’s assault, first surgery, and the subsequent discovery by Dr. Agag that
the hardware Defendant Patel installed in Plaintiff’s mouth had caused an opening, necessitating
a second surgery. (Turkle Decl. Ex. 3 at Bates No. COLON 00908–09.) It also describes the
serious medical complications Plaintiff continued to have following his surgeries, and Plaintiff’s
wish for further surgical intervention to resolve these complications. (Id.) It does not, however,
describe any complaint against Sullivan medical staff relating to the treatment they provided him
with following his surgeries. Plaintiff’s only reference to any Sullivan medical staff appears in
the “Action Requested by Inmate” section, wherein Plaintiff seeks a referral from the dentist at
Sullivan to an oral surgeon at Sing Sing Correctional Facility “as was previously attempted,” and
in the alternative, a referral from Dr. Patel to a more knowledgeable reconstructive surgeon for
the purpose of closing the opening in his palate and “whatever the reconstructive surgeon deems
appropriate with the approval of the facility health service director Dr. Wladyslaw Sidorowicz.”
(Id.)
21
Plaintiff is correct in asserting that he was not required to name Defendant Sidorowicz in
his grievances in order to exhaust his administrative remedies. Nonetheless, Plaintiff was
required to provide the information necessary for prison officials to investigate his complaints of
deliberate indifference “and the opportunity to learn which officers were involved in the alleged
incident[s].” Espinal, 558 F.3d at 126. Nothing in the relevant sections of Grievance 21235
suggests that Plaintiff ever complained of his injuries to Defendant Sidorowicz or any other
Sullivan employee and was ignored or received an inadequate response. See Turner, 376 F.
Supp. 2d at 325 (dismissing inmate’s claims sounding in deliberate indifference against prison
medical staff where “grievance alleged nothing more than one discrete instance of maltreatment”
at the hands of a single nurse); Sanchez v. Fischer, 03-cv-4433(GBD), 2005 WL 1021178
(S.D.N.Y. May 2, 2005) (dismissing inmate’s Eighth Amendment claim against doctor who
erroneously prescribed AZT to inmate, who did not have HIV, after inmate ingested a used
bandage where grievance did not allege that doctor failed to treat him properly); Evan v. Manos,
336 F. Supp. 2d 255, 259 (W.D.N.Y. 2004) (dismissing inmate’s claims against dentist for
failure to exhaust because “there [wa]s simply no suggestion anywhere in plaintiff’s grievance
that [the dentist] . . . had failed to provide him with adequate dental care”). This is consistent
with Plaintiff’s testimony that the allegations contained in Grievance 21235 did not concern the
conduct of Defendant Sidorowicz that is the subject of the amended complaint. (Turkle Decl.
Ex. 1 103–104.)
In contrast, numerous grievances submitted by Plaintiff on other occasions specifically
reference medical decisions made by, and actions taken by, Defendant Sidorowicz. (See Turkle
Decl. Ex. 4 at Bates No. COLON 00922–23 (“Dr. Sidorowicz [sic] decision to discontinue
grievant [sic] pain management medication amounts to Cruel and Unusual Punishment . . .”); Id.
22
Ex. 5 at Bates No. COLON 00942–43 (“To this date, Dr. Wladyslaw Sidorowicz has done
nothing to accommodate grievant’s medical eyesight needs . . .”); Id. Ex. 6 at Bates No. COLON
01030 (requesting that “Dr. Sidorowicz reconsider his decision to deny grievant possession of his
asthmatic inhalant,” among other things).) That Plaintiff was apparently well-versed in grieving
inadequate medical care on the part of Defendant Sidorowicz suggests that he was aware that he
could make such specific complaints but declined to do so in Grievance 21235. In any event,
contrary to Plaintiff’s assertions, no straightforward reading of Grievance 21235 permits the
conclusion that Plaintiff was “describing the deliberate indifference of Sullivan . . . medical
officials, including [D]efendant Sidorowicz, to his serious medical condition.” (Pl. Mem. Opp.
Sidorowicz Mot. 1.) Nor is the Court persuaded that the content of Grievance 21235 would
trigger any investigation into the deliberate indifference of Sullivan medical staff. See Robinson
v. Knibbs, No. 16-cv-03826 (NSR), 2019 WL 2578240, at *8 (S.D.N.Y. June 24, 2019)
(plaintiff’s grievances did not provide enough information for officials to investigate his claim
that the defendant denied the Percocet prescribed by his orthopedist by threatening him with
confinement in the Solitary Housing Unit where such forms complained only that prison health
staff had not done anything to treat his pain and that certain medical personnel failed to properly
administer sufficient medical attention).
Grievance 21389, filed on August 5, 2014, is similar in many respects to Grievance
21235. It contains the same recitation of Plaintiff’s assault and first surgery, his December 2013
examination by Dr. Agag, and his second surgery. (Turkle Decl. Ex. 5 at Bates No. COLON
00944.) Plaintiff then proceeds to describe the complications that remained after his second
surgery, and his third surgery in May of 2014, which Plaintiff contends he had to undergo due to
Defendant Patel’s substandard medical care. (Id. at Bates No. COLON 00944–45.) For the
23
reasons discussed above, these allegations do not suffice to exhaust Plaintiff’s deliberate
indifference claim.
Grievance 21389 contains three additional allegations that distinguish it from Grievance
21235. First, Plaintiff describes the pain he was in following his first surgery and states that such
pain was “[a] fact made well known to the Sullivan Correctional Facility medical staff.” (Id. at
Bates No. COLON 00944.) Second, Plaintiff says that he was examined by Dr. Agag in
December 2013 only “after months of complaining to medical staff” at Sullivan. (Id.) Finally,
Plaintiff says that as a consequence of his facial injuries, he has suffered “bouts of depression
and anxiety attacks making same known to Mental Health Services Personnel to no avail.” (Id.
at Bates No. COLON 00945.)
In the Amended Complaint, Plaintiff alleges that Defendant Sidorowicz and the Sullivan
Medical Does were deliberately indifferent to his medical needs following his first facial surgery
on September 27, 2013, (Am. Compl. ¶¶ 37–38), and his second surgery on January 29, 2014,
(Am. Compl. ¶¶ 45–46.) Plaintiff states that his third surgery took place on May 10, 2014, but
he makes no allegations of deliberate indifference following that date.
In its decision disposing of Grievance 21389, CORC specifically notes that Plaintiff’s
claims regarding medical care “from 2013 to May 2014” were untimely, and “would not be
addressed in the instant complaint.” (Turkle Decl. Ex. 5 at Bates No. COLON 00948.)
Plaintiff’s argues that in spite of this plain language, CORC “rendered decisions [on the merits]
regarding plaintiff’s ongoing serious medical condition,” thus exhausting Plaintiff’s claims
dating back to September of 2013. (Pl. Mem. Opp. Sidorowicz Mot. 12.) Given CORC’s
explicit rejection of the portion of Plaintiff’s grievance preceding May 2014, this argument is
meritless. Moreover, while Plaintiff cites to Johnson v. Killian, 680 F.3d 234 (2d Cir. 2012), for
24
the proposition that “a single grievance identifying two years of a ‘specific and continuing
complaint that ultimately becomes the basis of a lawsuit’ meets the requirements of the PLRA,”
(Pl. Mem. Opp. Sidorowicz Mot. 8 (citing Johnson, 680 F.3d at 238–39)), Johnson’s holding
applied to a complaint that continued after Plaintiff had timely filed a grievance. The plaintiff in
Johnson did not attempt to argue that complaints predating his grievance by several months
should be deemed timely because they arose from the same nucleus of facts as those complaints
timely asserted in his grievance. Furthermore, the Second Circuit cautioned that it did not hold
“that generalized complaints regarding the conditions of an inmate’s confinement will suffice to
shortcut the administrative remedy process.” Johnson, 680 F.3d at 239. Plaintiff may not
bootstrap untimely complaints regarding his medical treatment following his first and second
surgeries to related, but distinct, complaints following his third surgery by declaring that all such
complaints comprised one specific and continuing grievance.
Since CORC declined to address the merits of Plaintiff’s claims prior to May 10, 2014,
and rejected such claims as untimely, Plaintiff failed to properly exhaust his claims arising from
complaints he made prior to 2014, to the extent such claims can be deemed to assert that Sullivan
medical staff did not appropriately respond to his medical needs. See Colon v. Annucci, No. 17cv-4445, 2018 WL 4757972, at *17 (S.D.N.Y. Sept. 28, 2018) (dismissing claim for failure to
exhaust where “Plaintiff attached an exhibit to the Complaint clearly stating that the CORC
found that ‘his allegations of false misbehavior reports [we]re untimely’ and declined to address
them”) (citing Woodford, 548 U.S. at 83–84). In sum, Plaintiff did not exhaust the deliberate
indifference claims in this action by filing and fully appealing Grievance 21389.
Grievance 21696, dated April 27, 2015, includes a recitation of Plaintiff’s assault and
three facial surgeries. (Turkle Decl. Ex. 10 at Bates No. COLON 01046.) The remainder of
25
Grievance 21696 describes Plaintiff’s continued medical complaints following his surgeries and
demands that Plaintiff’s medical issues be addressed and resolved by a reconstructive surgeon.
(Id. at Bates No. Colon 01046–47.) Nothing in Grievance 21696 describes deliberate
indifference on the part of Defendant Sidorowicz and Sullivan medical staff. Moreover, upon
Plaintiff’s appeal of Grievance 21696, CORC rejected “grievant’s 2013 and 2014 allegations of
assault and medical negligence [as] untimely.” Thus, Grievance 21696 did not properly exhaust
any of the deliberate indifference claims included in the Amended Complaint.
Because Plaintiff did not exhaust his Section 1983 claims against Defendant Sidorowicz,
and because administrative remedies were available to Plaintiff, Defendant Sidorowicz’s motion
for summary judgment dismissing the Amended Complaint as against him is granted in its
entirety.
II.
Medical Defendants’ Motion for Summary Judgment
In light of the Court’s dismissal of Plaintiff’s claims against Defendant Sidorowicz,
Medical Defendants seek summary judgment dismissing Plaintiff’s medical malpractice claims
against them. Since Defendant Sidorowicz’s motion has been granted, there are no remaining
federal claims in this action and a lack of complete diversity. (See Medical Defendants’
Memorandum in Support of Motion for Summary Judgment (“Medical Defs’ Mem.”) (ECF No.
146) 1–2.) Accordingly, Medical Defendants argue that the Court should decline to exercise
supplemental jurisdiction over Plaintiff’s medical malpractice claims, which are the only claims
remaining in this action. (Id. 2.)
Pursuant to the 9/15/17 Order, the Court possesses supplemental jurisdiction over
Plaintiff’s medical malpractice claims. Thus, the relevant inquiry is whether the Court should
exercise its discretion to discontinue its jurisdiction. See 28 U.S.C. § 1367(c) (providing that a
26
district court “may decline to exercise supplemental jurisdiction” if one of four circumstances
applies); Catzin v. Thank You & Good Luck Corp., 899 F.3d 77, 83 (2d Cir. 2018) (after
dismissing federal claims, the “District Court only faced the discretionary inquiry of whether to
discontinue that jurisdiction”). Pursuant to 28 U.S.C. § 1367(c)(3), a federal court may properly
dismiss a claim for which it originally had supplemental jurisdiction if “the district court has
dismissed all claims over which it has original jurisdiction.” “Under this prong, and in a great
many cases, the evaluation will usually result in the dismissal of state-law claims.” Catzin, 899
F.3d at 83. However, the fact that all federal law claims have been eliminated prior to trial does
not automatically render dismissal of state law claims appropriate. Id. Courts should not decline
to exercise supplemental jurisdiction based on any of the enumerated factors in 28 U.S.C. § 1367
unless they also determine that exercising supplemental jurisdiction would not promote the
values of “economy, convenience, fairness and comity.” Jones v. Ford Motor Credit Co., 358
F.3d 205, 214 (2d Cir. 2004) (citing United Mine Workers of America v. Gibbs, 383 U.S. 715,
726 (1966)); see also Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006).
With these considerations in mind, the Second Circuit has found that where a case has
been long-pending and presents no novel issues of state law, and where discovery has been
completed, dispositive motions have been submitted, and the case would soon be ready for trial,
the exercise of supplemental jurisdiction in the absence of surviving federal law claims is
appropriate. Catzin, 899 F.3d at 83; see Kroshnyi v. U.S. Pack Courier Servs., Inc., 771 F.3d 93,
102 (2d Cir. 2014) (citing Raucci v. Town of Rotterdam, 902 F.2d 1050, 1055 (2d Cir. 1990))
(affirming exercise of supplemental jurisdiction where case had been before the district court for
over six years, discovery was completed, dispositive motions had been submitted, and the case
was nearly trial-ready); Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305–06 (2d Cir. 2003)
27
(collecting cases). Conversely, where federal claims are dismissed at a relatively early stage and
the remaining claims involve issues of state law that are unsettled, the Second Circuit has
concluded that the exercise of supplemental jurisdiction is an abuse of discretion. Valencia ex
rel. Franco, 316 F.3d at 306 (collecting cases).
Here, although Plaintiff commenced his action on September 18, 2015, over four years
ago, his case has progressed slowly. After obtaining counsel, Plaintiff filed the Amended
Complaint on August 15, 2016, (ECF No. 41), and Defendants filed motions to dismiss on
December 16, 2016, and January 17, 2017, respectively, (ECF Nos. 58, 68.) On September 15,
2017, the Court issued the 9/15/17 Order granting the motions in part and denying them in part.
(ECF No. 79.) Defendants filed answers to the Amended Complaint in late October of 2017.
(ECF Nos. 81, 83.) By Plaintiff’s own account, while the parties have made Rule 16 disclosures,
served and answered interrogatories, and exchanged preliminary paper discovery including
Plaintiff’s medical and prison records, the only deposition that has been conducted thus far was
of plaintiff by counsel for State Defendants and was limited to issues related to the PLRA
exhaustion requirements. (Plaintiff’s Memorandum in Opposition to Medical Defendants’
Motion for Summary Judgment (“Pl.’s Mem. Opp. Medical Defs. Mot.”) (ECF No. 150) 6.)
Accordingly, the parties have yet to complete party depositions, potential non-party depositions,
and expert discovery. (Medical Defs.’ Mem. 3; Mandell Decl.¶ 10.) Moreover, discovery has
been stayed since October 15, 2018, pending the submission and disposition of the motions
presently before the Court. (ECF No. 117.)
Plaintiff complains that having to re-file his claims in state court would constitute a
“significant setback,” asserting that he is already almost 81-years-old. (Pl.’s Mem. Opp. Medical
Defs. Mot. 6.) While the Court is sympathetic to Plaintiff’s desire for an expeditious resolution
28
to his claims given his age, the fact remains that this case is far from trial-ready. Plaintiff does
not dispute this. In addition, to the extent that Plaintiff is concerned about the amount of paper
discovery that has already been exchanged, there is no reason that such discovery cannot be used
in state court, without the necessity of making duplicative disclosures.
In light of the dismissal of all federal claims from this action, the substantial discovery
that remains outstanding, and the fact that Plaintiff’s “medical malpractice claims against
[Medical Defendants] involve quintessential state law issues best resolved in a state forum,”
Weathers v. Millbrook Central Sch. Dist., 486 F. Supp. 2d 276 (S.D.N.Y. 2007), the Court, in its
discretion, declines to exercise supplemental jurisdiction over Plaintiff’s medical malpractice
claims. Accordingly, those claims are dismissed, without prejudice to Plaintiff bringing the same
claims in state court.
III.
Plaintiff’s Motion for Leave to File a Certificate of Merit
Since the Court dismisses the Amended Complaint against Medical Defendants, it need
not decide Plaintiff’s motion for leave to a file a belated certificate of merit pursuant to N.Y.
C.P.L.R. § 3012-a(a). Accordingly, Plaintiff’s motion is denied as moot.
CONCLUSION
For the foregoing reasons, Defendant Sidorowicz and Medical Defendants’ respective
motions for summary judgment are GRANTED, and the Amended Complaint is dismissed as
against them. The Court’s dismissal of Plaintiff’s claims against Defendant Sidorowicz is with
prejudice. The Court’s dismissal of Plaintiff’s medical malpractice claims is without prejudice to
properly refiling those claims in state court. Plaintiff’s motion for leave to serve a late certificate
of merit is DENIED as moot.
29
The Clerk of the Court is respectfully directed to terminate the motions at ECF Nos. 123,
137, and 139 and close the case.
Dated:
October J], 2019
White Plains, New York
SO ORDERED:
::;:::->"
NELSON S. ROMAN
United States District Judge
30
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