Parra v. Wright et al
Filing
35
DECISION AND ORDER denying 17 Motion to Appoint Counsel ; denying 34 Motion to Appoint Counsel ; denying 34 Motion ; granting in part and denying in part 14 Motion to Dismiss. Plaintiffs motions [#17] [#34] for appointment of counsel are denied. Defendants motion for summary judgment [#14] is granted as to the claims involving Wende and Lakeview, but is otherwise denied without prejudice to the parties bringing further summary judgment motions once discovery is completed. Defendants counsel is directed to immediately contact Magistrate Judge Feldmans chambers to Request a Scheduling Order.Signed by Hon. Charles J. Siragusa on 12/18/13. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________________
EDWIN PARRA,
Plaintiff
DECISION AND ORDER
-vs11-CV-6270 CJS
DR. LESTER WRIGHT, et al.,
Defendants
__________________________________________
INTRODUCTION
Edw in Parra (“ Plaintiff” ) is an inmate in the custody of the New York State
Department of Corrections and Community Supervision (“ DOCCS” ), and Defendants
are medical personnel employed by DOCCS. Plaintiff alleges, pursuant to 42 U.S.C.
§ 1983 (“ § 1983" ), that Defendants violated his Eighth Amendment rights by acting
w ith deliberate indifference to his serious medical needs. 1 Plaintiff also asserts
claims under the Americans w ith Disabilities Act (“ ADA” ) and the Rehabilitation Act
(“ § 504" ). Now before the Court is Defendants’ motion (Docket No. [#14]) for
summary judgment and Plaintiff’ s motions [#17] [#34] for appointment of counsel.
Plaintiff’s motions [#17] [#34] for appointment of counsel are denied, and Defendants’
motion for summary judgment [#14] is granted in part and denied in part.
1
In order to establish individual liability under § 1983, a plaintiff must show (a) that the
defendant is a " person" acting " under the color of state law ," and (b) that the defendant caused
the plaintiff to be deprived of a federal right. See, e.g., Monroe v. Pape, 365 U.S. 167, 81 S.Ct.
473, 5 L.Ed.2d 492 (1961), overruled on other grounds by Monell v. Dep' t of Soc. Servs. of City of
New York, 436 U.S. 658, 663, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
1
BACKGROUND
Unless otherw ise indicated, the follow ing are the facts of the case view ed in
the light most-favorable to Plaintiff.2 Plaintiff suffers from degenerative disease in
his lumbo-sacral spine, for w hich he has been receiving pain medications and other
treatments w hile in custody, since approximately 2007. More specifically, MRI
testing indicates that Plaintiff has “ bulging and disc protrusion,” causing some
“ nerve root impingement,” w hich results in low er-back pain. From the record it
appears that at all relevant times, various doctors employed by DOCCS have
provided Plaintiff w ith pain medications and physical therapy, and that other times
they have also provided him w ith an elastic back support, an additional mattress
and/or a permit allow ing him to sleep on the low er bunk of a tw o-bunk cell. The pain
medications that Plaintiff has received have varied, and include Ultram, Neurontin,
Naproxen, Motrin and other analgesics and non-steroidal anti-inflammatory drugs
(“ NSAIDS” ).
Plaintiff believes that the most-appropriate treatment for his condition is a
combination of Ultram and Neurontin, as w ell as a back support brace, a double
mattress and a low er-bunk permit. Plaintiff has not alw ays been provided w ith all of
those items, and consequently, he alleges that he w as denied appropriate medical
treatment at three New York State correctional facilities: Wende Correctional Facility
2
As further noted below , the facts are taken from the entire record, including documents
submitted in connection w ith Defendants’ summary judgment motion and documents submitted in
connection w ith Plaintiff’ s motion to preliminary injunctive relief, w hich w as briefed and decided
w hile the summary judgment motion w as pending.
2
(“ Wende” ), Lakeview Correctional Facility (“ Lakeview ” ) and Southport Correctional
Facility (“ Southport” ).
In that regard, Plaintiff indicates that in “ early 2010" he w as housed at
Wende, and later that year he w as transferred to Lakeview . Plaintiff w as then
transferred to Five Points Correctional Facility (“ Five Points” ) for approximately tw o
months.3 Then, in or about April 2011, Plaintiff allegedly committed disciplinary
infractions at Five Points, for w hich he w as transferred to Southport. Plaintiff’ s
particular complaints about his treatment at Wende, Lakeview and Southport are set
out below .
Wende
At Wende, Nurse Practitioner Obertean reduced Plaintiff’ s pain medications
and encouraged him to participate in physical therapy to reduce his pain. An entry in
Plaintiff’ s Ambulatory Health Record (“ AHR” ) dated July 12, 2010, indicates that
Orbertean spent 48 minutes conducting a physical examination of Plaintiff. 4
Obertean’ s notes indicate that her findings did not support Plaintiff’ s subjective
complaints of pain. For example, she stated that Plaintiff w as not limping w hen he
entered the exam room, but began limping during the exam. Obertean also indicated
that Plaintiff appeared to express exaggerated pain w hen she lightly touched his
3
Betw een March 2011 and April 2011, Plaintiff w as housed at Five Points. At Five Points,
Plaintiff believes that he received proper treatment. In particular, he states that Nurse Practitioner
Salotti (“ Salotti” ) provided him w ith Ultram, Neurontin, physical therapy, a back brace and a permit
to allow him to sleep on the low er bunk. Plaintiff further states that Salotti told him, “ These other
medical providers [at other facilities] are just trying to save the state money, they don’ t care about
you.” Complaint [#1] at pp. 55-56.
4
Complaint [#1] at p. 49.
3
back and w hen she performed a flexion test. On the other hand, Obertean observed
that Plaintiff w as able to “ sit easily in a chair,” cross his legs, remove his socks, and
perform other movements. Obertean also noted that Plaintiff’ s Electromyogram
(“ EMG” ) test results w ere normal. Obertean indicated that as a result of her testing,
she decided to “ slow ly taper” Plaintiff off Ultram and treat him w ith Motrin instead. 5
She also prescribed a new elastic back brace for Plaintiff. How ever, Obertean denied
Plaintiff’ s requests for an extra mattress and a low er-bunk permit. Plaintiff w rote to
Susan Post (“ Post” ), Deputy Superintendent for Health at Wende, and complained
about Obertean. How ever, on October 6, 2010, Post responded, telling Plaintiff that
Obertean’ s treatment w as appropriate, and that Plaintiff should “ fully participate” in
physical therapy, since that w as his “ best chance . . . to strengthen [his] core
muscles and better control [his] chronic pain.” 6
Lakeview
On October 20, 2010, Nurse Practitioner Larry Wilcox (“ Wilcox” ) w rote to
Plaintiff and denied his requests for an additional mattress and for a “ low er bunk
permit.” Wilcox stated that such provisions w ere not w arranted by DOCCS
healthcare policies, and that Plaintiff’ s medications w ere controlling his pain. 7
Wilcox further indicated that Plaintiff w as receiving physical therapy. On November
5
On September 20, 2010, Plaintiff w rote to Deputy Superintendent Susan Post, at Wende,
that Obertean w as “ tapering” him off Ultram. See, Complaint [#1] at p. 45. In the same letter,
Plaintiff indicated that he w as participating in physical therapy. Id.
6
Complaint [#1] at p. 47.
7
Complaint [#1] at p. 51.
4
15, 2010, Dr. Caisley also w rote to Plaintiff concerning Plaintiff’ s request for a low er
bunk permit. Caisley noted that Plaintiff had received physical therapy, and further
stated:
In the past another facility may have granted you a [low er bunk] permit
and given you other things that you now believe you are entitled to.
How ever, my review of our medical record and Health Services Policy
1.49 Low er Bunk Placement indicate that you do not meet the criteria
for low er bunk placement. I am enclosing a copy of that policy for your
review . . . . It is clear that you do not meet the guidelines as
established in that policy.
Complaint [#1] at p. 52. Plaintiff w rote to Eileen DiNisio (“ DeNisio” ), DOCCS
Regional Health Services Administrator, and complained about his treatment at
Lakeview . How ever, on December 21, 2010, DiNisio responded and indicated that
Plaintiff’ s treatment w as appropriate. In that regard, DiNisio indicated that Plaintiff
w as “ currently prescribed Neurontin for [his] discomfort.” 8
Southport
On April 14, 2011, Plaintiff arrived at Southport, and nurse D. Weed, R.N.,
performed an initial medical screening. Weed told Plaintiff that he could not have his
elastic brace unless it w as approved by the facility doctor, Wesley Canfield, M.D.
(“ Canfield” ). Later that day, Canfield initiated a tapering of Plaintiff’ s Ultram and
Neurontin, w hich had previously been discontinued at Wende and Lakeview , but
w hich had been re-prescribed at Five Points. More specifically, Canfield reduced
Plaintiff’ s existing prescription of 600 mg of Neurontin and 100 mg of Ultram, to
8
Complaint [#1] at p. 54.
5
300 mg of Neurontin and 50 mg of Ultram. See, Amended Complaint [#8] at p. 44
(Indicating that the treatment recommendation w as to w ean Plaintiff from Neurontin
and Ultram over a period of seven days). 9 After approximately one w eek, medical
staff at Southport discontinued Plaintiff’ s prior pain medication prescription
altogether, and replaced it w ith new medications. Specifically, on April 15, 2011,
Nurse Practitioner Ben Oakes (“ Oakes” ) prescribed Naproxen and another pain
reliever, the name of w hich is illegible. See, Complaint [#1] at p. 34. Oakes also
prescribed the pain medications Flexeril, Voltaren and Feldene, apparently in
response to Plaintiff’ s complaints that the other medications w ere not effective.
Motion to Amend [#6] at p. 2. Oakes also obtained an x-ray of Plaintiff’ s shoulder,
after Plaintiff complained of pain. Amended Complaint [#8] at p. 19. Oakes further
requested additional physical therapy for Plaintiff, 10 but in June 2011, DOCCS denied
Plaintiff’ s request for further physical therapy, because he w as not participating in
any w ork programs and he did not have a “ clear medical necessity” for such
treatment. Motion to Amend [#6] at p. 13. Plaintiff indicates that he w rote to Lester
Wright, M.D. (“ Wright” ), DOCCS Deputy Commissioner and Chief Medical Officer,
and Wright’ s successor, Carl Koenigsmann, M.D. (“ Koenigsmann” ), about “ these
problems.” Amended Complaint [#8] at p. 19. On July 21, 2011, Dr. Canfield w rote
to Plaintiff and explained that he discontinued the Ultram and Neurontin after
9
In the body of the pleading, Plaintiff refers to it as his “ Second Amended Complaint.” The
Court w ill refer to it as his Amended Complaint.
10
Amended Complaint [#8] at p. 19.
6
review ing Plaintiff’ s medical chart. Motion to Amend [#6] at p. 17. Canfield further
noted that Oakes had been giving Plaintiff “ appropriate medication for [Plaintiff’ s]
conditions.” Id. Plaintiff also claims that he w rote to Nurse Administrator John
VonHagn (“ VonHagn” ), but “ to no avail.” Amended Complaint [#8] at p. 17.
Plaintiff further indicates that he w rote to Wendy Lukas, DOCCS Regional
Health Service Administrator, but again, “ to no apparent avail.” Amended Complaint
[#8] at p. 17. In that regard, Plaintiff apparently w rote to Lukas in or about May,
2011. On May 20, 2011, Lukas responded in w riting, indicating that she had
investigated Plaintiff’ s concerns w ith Southport’ s medical staff. Lukas stated, inter
alia, that although Southport’ s staff had discontinued Plaintiff’ s Naprosyn, they w ere
giving him Voltarin and Flexeril instead. Id. at p. 53. Lukas further instructed
Plaintiff to bring his concerns to the Southport medical staff using the established
sick-call procedures. Id.
Plaintiff also states that he complained to K. Weaver, R.N. (“ Weaver” ) and
“ Mr. Clement,” R.N. (“ Clement” ), w hen they w ere w orking as “ sick-call” nurses at
Southport. Amended Complaint [#8] at p. 18.
With regard to all of the aforementioned claims at the various correctional
facilities, Plaintiff states that he “ filed several grievances and has exhausted his
remedies on one issue.” Amended Complaint [#8] at p. 18 (referring to Exhibit D of
that document). On this point, Plaintiff admits that he did not file any grievances
w hile at Wende or Lakeview , and that the first inmate grievance he filed concerning
these matters w as at Southport. Amended Complaint [#8] at ¶ 33.
7
More specifically, on April 21, 2011, Plaintiff filed SPT-51340-11, w hich
complained about the discontinuation of Neurontin and Ultram, and the confiscation
of his back brace. On May 4, 2011, the Inmate Grievance Review Committee
(“ IGRC” ) denied the grievance. Plaintiff appealed to Southport’ s Superintendent, and
on May 10, 2011, M. Sheahan (“ Sheahan” ), Assistant Superintendent, denied the
appeal. Plaintiff then appealed to the Central Office Review Committee (“ CORC” ).
See, Motion to Amend [#6] at p. 19. On July 27, 2011, CORC denied the appeal,
noting that Ultram and Neurontin had been discontinued because they w ere “ not
medically indicated,” and that Plaintiff w as instead receiving “ Flexeril and Feldene for
pain.” Amended Complaint [#8] at p. 62.
On June 16, 2011, he filed another grievance at Southport, SPT-51701-11,
complaining that the medical staff had discontinued his Ultram and Neurontin, and
provided him w ith other pain medications that w ere not controlling his pain. Motion
to Amend [#6] at p. 9. The IGRC denied the grievance and Plaintiff appealed. On
July 8, 2011, Sheahan denied Plaintiff’ s appeal, stating in pertinent part:
[G]rievant arrived at Southport on 4/14/11 w ith an order for Ultram and
Neurontin. The physician review ed his medical record and deemed that
these medications w ere not appropriate treatment. The medication w as
slow ly discontinued and the grievant w as continued on the antiinflammatory, Naprosyn. . . . [O]n 5/9/11 . . . his medication w as
changed to Flexeril and Voltaren.
Motion to Amend [#6] at p. 10. It appears that on July 12, 2011, Plaintiff appealed
Sheahan’ s decision to the CORC, and that CORC again denied his appeal. Id.
Plaintiff filed tw o additional grievances at Southport, SPT-51785-11 and SPT8
51433-11, both of w hich complained about the alleged lack of medical care.
It
seems that Plaintiff appealed those grievances to the level of the facility
superintendent, but not to CORC. See, e.g., Amended Complaint [#8] at p. 70. On
September 27, 2011, Plaintiff filed another grievance, complaining that he had been
w ithout his pain medications for “ about three w eeks,” because Flexeril and Feldene
“ didn’ t w ork,” and that he had been w aiting since August to be seen by a pain
management specialist. Supplemental Complaint [#10] at p. 15. On September 28,
2011, Southport’ s Inmate Grievance Program (“ IGP” ) supervisors w rote to Plaintiff
and informed him that they w ere not going to process that grievance, because his
complaints w ere essentially the same as those that had already been addressed “ at
levels of the grievance process.” Supplemental Complaint [#10] at p. 16. How ever,
the IGP Supervisors indicated that the grievance w ould be deemed “ exhausted,” and
that Plaintiff could “ proceed w ith legal action if [he] w ish[ed].” Id.
On May 26, 2011, Plaintiff commenced this action, proceeding pro se, and
requesting permission to proceed in forma pauperis. The Complaint included claims
under Section 1983, the ADA and Section 504. The Court review ed Plaintiff’ s
application, pursuant to 28 U.S.C. § 1915, and directed him to provide additional
information. See, Decision and Order [#4]. Subsequently, the Court granted
Plaintiff’ s request to proceed in forma pauperis, and directed him to file an amended
complaint. See, Decision and Order [#7]. On September 1, 2011, Plaintiff filed an
Amended Complaint [#8], w hich again asserts claims under § 1983, the ADA and §
504, and w hich seeks money damages, as w ell as declaratory and injunctive relief.
9
On November 8, 2011, the Court completed its review of the Amended Complaint
under 28 U.S.C. § § 1915 and 1915A, and directed service on Defendants. See,
Order [#9].
On April 9, 2012, almost immediately after most of the Defendants w ere
served and prior to any Rule 16 Conference or any discovery being conducted,
Defendants filed the subject motion [#14] for summary judgment.
Defendants’ application is odd in several respects. First, the Notice of Motion
[#14] clearly indicates that Defendants are requesting summary judgment pursuant
to Rule 56, and includes a Rule 56 statement of facts and a declaration from Dr.
Canfield, as w ell as the required Irby notice to pro se litigants, but the supporting
Memorandum of Law [#14-4] includes the Rule 12(b)(6) “ motion to dismiss for
failure to state a claim” standard, and argues that certain matters are not properly
pleaded. See, [#14-4] at p. 7. Additionally, w hen Defendants’ counsel filed the
motion using the Court’ s electronic case management system (“ CM/ECF” ), he
apparently designated it as a “ motion to dismiss.” See, Docket entry [#14]. The
Court urges that in the future, Defendants’ counsel determine the basis for his
motion, and draft the supporting papers to accurately and consistently reflect the
same. If the notice of motion does not indicate that Defendants are seeking
dismissal pursuant to Rule 12(b)(6), the memorandum of law should not contain
12(b)(6) boilerplate. The Court further reminds Defendants’ counsel, as discussed
further below , that in most cases, it is inappropriate to file a motion for summary
judgment prior to Plaintiff having an opportunity to conduct discovery.
10
In any event, the motion indicates, first, that any claims involving Wende or
Lakeview must be dismissed, since Plaintiff never exhausted his administrative
remedies as to them. Defendants further maintain that claims against Koenigsmann,
Oakes, VonHagn, Wright, Weaver, Clement, Wilcox, Caisley, Levitt and Post should
be dismissed for lack of personal involvement. Finally, Defendants contend that the
deliberate indifference claims must be dismissed since Defendants provided
appropriate medical treatment. 11
On September 17, 2012, w hile the summary judgment motion w as still
pending, Plaintiff filed an application [#19] for preliminary injunctive relief, seeking an
order directing medical staff at Southport to provide him w ith the follow ing:
“ previously prescribed medications,” presumably meaning Ultram and Neurontin; a
transcutaneous electrical nerve stimulation (“ TENS” ) unit; “ physical therapy” ;
“ double mattress” ; and a “ back brace.” Dr. Canfield responded to the application by
indicating that he had discontinued those specific medications and treatments,
because they w ere unnecessary. In that regard, Canfield stated that he review ed
Plaintiff’ s medical file and determined that Plaintiff’ s prescribed pain medications,
Neurontin and Ultram, w ere not needed, since a 2009 nerve conduction study w as
normal, and a 2008 MRI test show ed only degenerative disc disease w ith “ minimal”
11
Defendants’ memo of law [#14-4] also contains a one-line statement that “ Plaintiff’ s
allegations against Defendants in their official capacities should be dismissed,” citing Davis v. New
York, 316 F.3d 93, 102-103 (2d Cir. 2003). How ever, as noted above, Plaintiff is seeking money
damages as w ell as declaratory and injunctive relief, see, Amended Complaint [#8] at ¶ 38, and
Defendants have not sufficiently explained the basis or scope of their request on this point.
11
nerve root impingement. Canfield also stated that in making his decision, he had
considered that Plaintiff had a history of drug abuse and smuggling, w hich made
Ultram and Neurontin “ counter indicated.”
On October 16, 2012, Canfield filed a supplemental declaration [#23] in
opposition to Plaintiff’ s application for preliminary injunctive relief. Canfield stated
that w hen Plaintiff arrived at Southport in April 2012, from Five Points, doctors at
Five Points had been prescribing Plaintiff Neurontin, Ultram and a TENS unit, but not
a double mattress. Canfield indicated, though, that w ith the exception of the TENS
unit, w hich Plaintiff received at Southport, he discontinued those treatments, for
several reasons, including the follow ing: 1) instead of Neurontin and Ultram, he
directed that Plaintiff receive non-steroidal anti-inflammatory drugs (“ NSAIDS” ),
w hich produce the same results as Ultram and Neurontin but do not have the same
serious negative side effects; 2) Neurontin is not appropriate for Plaintiff in any
event, since he does not have neurologic pain in his legs; 3) Plaintiff has a
“ significant history of drug-seeking and drug abuse,” and Utram has a chemical
structure similiar to opioids, w hich makes it desirable to inmates w ho w ant to abuse
the drug; 4) in 2012 the FDA cautioned against prescribing Ultram to addiction-prone
patients; 5) Ultram can increase a patient’ s risk of suicide; 6) Plaintiff may be
malingering to obtain the medication, since he is still able to play basketball and
softball; and 7) there is no medical literature to support Plaintiff’ s belief that a
“ double mattress” is appropriate for back pain.
On October 16, 2012, Plaintiff filed a declaration [#24] in further support of
12
his application for a preliminary injunction, in w hich he stated that,“ Dr. Canfield and
staff ha[ve] prescribed many medications and treatments, other than w hat w as
previously prescribed . . . even though they have not given me any real relief.” Id. at
¶ 6. On October 23, 2012, Plaintiff filed another declaration [#25], indicating, inter
alia, that NSAIDS are not appropriate to treat him, and that Canfield is slandering
him by suggesting that he is possibly malingering to obtain drugs. In addition,
Plaintiff states that he no longer plays sports.
On September 7, 2012, and September 25, 2013, Plaintiff filed his second
and third motions [#17] [#34] for appointment of counsel.
On June 12, 2013, the Honorable Jonathan W. Feldman, United States
Magistrate Judge, stayed discovery pending the resolution of “ defendants’ motion to
dismiss.” See, Order [#32]. There is no indication on the docket that any discovery
has taken place in this case to date.
DISCUSSION
Plaintiff’ s Motions for Appointment of Counsel
At the outset, Plaintiff’ s second and third motions for appointment of counsel
[#17] [#34] are denied. There is no constitutional right to appointed counsel in civil
cases. How ever, under 28 U.S.C. § 1915(e), the Court may appoint counsel to
assist indigent litigants. See, e.g., Sears, Roebuck & Co. v. Charles W. Sears Real
Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988). Assignment of counsel in this matter
is clearly w ithin the judge' s discretion. In re Martin-Trigona, 737 F.2d 1254 (2d Cir.
1984). The factors to be considered in deciding w hether or not to assign counsel
13
include the follow ing:
1. Whether the indigent’ s claims seem likely to be of substance;
2. Whether the indigent is able to investigate the crucial facts concerning his
claim;
3. Whether conflicting evidence implicating the need for cross-examination
w ill be the major proof presented to the fact finder;
4. Whether the legal issues involved are complex; and
5. Whether there are any special reasons w hy appointment of counsel w ould
be more likely to lead to a just determination.
Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997); see also Hodge v. Police
Officers, 802 F.2d 58 (2d Cir. 1986).
Having considered all of the foregoing factors, the Court finds that
appointment of counsel is not w arranted at this time. For example, as discussed
further below , the bulk of Plaintiff’ s claims are procedurally barred, for failure to
exhaust administrative remedies, and the remaining § 1983 claims are of
questionable merit inasmuch as they may involve a mere disagreement over
treatment.12 Moreover, the claims are not overly complex, and Plaintiff has so far
done a satisfactory job of presenting them to the Court w ithout the assistance of an
attorney.
Defendants’ Motion for Summary Judgment
Summary judgment may not be granted unless " the movant show s that there
is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law .” Fed.R.Civ.P. 56(a). The underlying facts contained in affidavits,
attached exhibits, and depositions, must be view ed in the light most favorable to the
12
The merits vel non of the ADA and Section 504 claims are unclear, since the parties did
not brief them.
14
non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Summary
judgment is appropriate only w here, " after draw ing all reasonable inferences in favor
of the party against w hom summary judgment is sought, no reasonable trier of fact
could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308
(2d Cir.1993). Moreover, since Plaintiff is proceeding pro se, the Court is required to
construe his submissions liberally, " to raise the strongest arguments that they
suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994).
Although Plaintiff has not raised the issue, the Court is mindful that no
discovery has yet taken place in this action, since " [o]nly in the rarest of cases may
summary judgment be granted against a plaintiff w ho has not been afforded the
opportunity to conduct discovery." Young v. Benjamin Development Inc., 395
Fed.Appx. 721, 722–723, 2010 WL 3860498 at * 1 (2d Cir. Oct.5, 2010) (citation
omitted). For this reason, the Court w ill deny, w ithout prejudice to renew once
discovery has been completed, the bulk of Defendants’ motion. How ever, the Court
w ill address Defendants’ motion insofar as it is directed at Plaintiff’ s alleged failure
to exhaust his administrative remedies. In that regard, the facts regarding Plaintiff’ s
efforts at exhaustion are not disputed, and it does not appear that any amount of
discovery w ould change the outcome of that portion of the application.
Exhaustion of Administrative Remedies
Defendants admit that w hile at Southport, Plaintiff exhausted his
administrative remedies concerning his claim that he w as denied his back brace and
pain medications. See, Def. Memo of Law [#14-4] at p. 2. How ever, Defendants
15
contend that all claims “ relating to events occurring at other facilities have not been
grieved to exhaustion, and, as such, should be dismissed.” Id. at p. 7. The Court
agrees that the claims involving Wende and Lakeview are unexhausted. On this
point, the legal principles are clear:
The Prison Litigation Reform Act of 1995 (“ PLRA” ) states that “ [n]o
action shall be brought w ith 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 exhaustion requirement applies to all inmate suits about prison
life, w hether they involve general circumstances or particular episodes,
and w hether they allege excessive force or some other w rong.
Prisoners must utilize the state' s grievance procedures, regardless of
w hether the relief sought is offered through those procedures.
***
The exhaustion inquiry thus requires that w e look at the state prison
procedures and the prisoner' s grievance to determine w hether the
prisoner has complied w ith those procedures.
***
The IGP has a regular three-tiered process for adjudicating inmate
complaints: (1) the prisoner files a grievance w ith the Inmate Grievance
Resolution Committee (“ IGRC” ), (2) the prisoner may appeal an adverse
decision by the IGRC to the superintendent of the facility, and (3) the
prisoner then may appeal an adverse decision by the superintendent to
the Central Officer Review Committee (“ CORC” ). N.Y. Comp.Codes R.
& Regs., tit. 7, § 701.7.
Espinal v. Goord, 558 F.3d 119, 123-125 (2d Cir. 2009) (citations and internal
quotation marks omitted). As the exhaustion statute indicates, it applies to § 1983
claims and claims “ under any other Federal law ,” including the ADA and § 504. See,
e.g., Arce v. O’ Connell, 427 F.Supp.2d 435, 440 (S.D.N.Y. 2006) (“ It is undisputed
16
that claims under the ADA must be exhausted via the grievance procedure
established under the PLRA.” ); see also, Alster v. Goord, 745 F.Supp.2d 317, 332
(S.D.N.Y. 2010) (agreeing that inmates’ ADA claims must be exhausted)
In this case, Plaintiff did not attempt to utilize New York’ s Inmate Grievance
Process w hile he w as at Wende or Lakeview . Plaintiff nevertheless contends that he
exhausted his administrative remedies. In that regard, he states:
Plaintiff has ‘ exhausted’ all administrative remedies readily available to
him, by the State of New York. He has filed several ‘ grievances’ in the
only prison that permits such remedy (Southport Correctional Facility);
and has addressed his medical issues and complaints to those w hom
hold supervisory positions in the other prisons in the Department of
Corrections and Community Supervision. In all its aspects, Plaintiff, as
a pro se litigant, has properly ‘ exhausted’ all administrative remedies to
the best of his know ledge and understanding. Plaintiff has also received
several final decisions from the Department of Corrections and
Community Supervision’ s ‘ Central Office Review Committee’ (Grievance
Office), in regards to the grievances filed at Southport Correctional
Facility, w hich he hopes to adduce at trial.
Pl. Response to Motion to Dismiss [#16] at p. 3. How ever, Plaintiff’ s assertion that
Southport is the only facility w ith an Inmate Grievance Program is indisputably
incorrect. Nor is it plausible for Plaintiff to make such an assertion, considering that
his most-recent term of incarceration began in 1998, more than ten years prior to
the events at issue here, and that he has been housed at numerous different facilities
17
during that time, all of w hich, by law ,13 had Inmate Grievance Programs. 14 Plaintiff’ s
vague statement that he acted “ to the best of his know ledge” does not fall w ithin
any of the recognized exceptions to the exhaustion requirement. 15 Furthermore,
Plaintiff’ s letters to various personnel are not grievances w ithin the meaning of §
1997e(a). In that regard, under New York law , an inmate grievance is
a complaint, filed w ith an IGP clerk, about the substance or application
of any w ritten or unw ritten policy, regulation, procedure or rule of the
Department of Correctional Services or any of its program units, or the
lack of a policy, regulation, procedure or rule. A letter addressed to
facility or central office staff is not a grievance.
7 NYCRR § 701.2(a) (emphasis added). Plaintiff’ s letters, therefore, do not amount
to grievances.
In summary, Plaintiff’ s claims concerning Wende and Lakeview must be
13
See, New York Corrections Law
§ 139.
14
According to the DOCCS w ebsite, this is Plaintiff’ s third sentence of imprisonment,
having previously been incarcerated in 1991 and 1993.
15
See, Chisholm v. New York City Dept. of Correction, No. 08 Civ. 8795(SAS) 2009 WL
2033085 at * 2 (S.D.N.Y. Jul. 13, 2009) (“ While the Second Circuit has recognized that the
PLRA' s exhaustion requirement is mandatory, it has also recognized three exceptions to the
exhaustion requirement: ‘ w hen (1) administrative remedies are not available to the prisoner; (2)
defendants have either w aived the defense of failure to exhaust or acted in such a w ay as to estop
them from raising the defense; or (3) special circumstances, such as reasonable misunderstanding
of the grievance procedure, justify the prisoner' s failure to comply w ith the exhaustion
requirement.’ ” ) (citing Ruggiero v. County of Orange, 467 F.3d 170, 175 (2d Cir. 2006)); but see,
Cuello v. Lindsay, No. 09–CV–4525 (KAM)(MDG), 2011 WL 1134711 at * 9 (E.D.N.Y. Mar. 25,
2011) (Inmate’ s ignorance of the exhaustion requirement is not a “ special circumstance” that w ill
excuse exhaustion); Smith v. City of New York, No. 12 Civ. 3303(CM), 2013 WL 5434144 at * 21
(S.D.N.Y. Sep. 26, 2013) (Being unaw are of exhaustion requirement “ is no justification for
[plaintiff’ s] failure to exhaust his administrative remedies.” ).
18
dismissed for failure to exhaust administrative remedies. The dismissal is w ith
prejudice, since those administrative remedies are no longer available to him. See,
Bridgeforth v. Bartlett, 686 F.Supp.2d 238, 240 (W.D.N.Y. 2010) (“ Since the time
limits for plaintiff to file an administrative appeal have long since passed,
administrative remedies are no longer available to him, as a result of his ow n
inaction. This case, then, is precisely the kind of case that the PLRA w as intended to
foreclose.” ); see also, 7 NYCRR § 701.5(a)(1) (New York’ s IGP regulations require,
in pertinent part, that grievances be filed “ w ithin 21 calendar days of an alleged
occurrence.” ).
CONCLUSION
Plaintiff’s motions [#17] [#34] for appointment of counsel are denied. Defendants’
motion for summary judgment [#14] is granted as to the claims involving Wende and
Lakeview, but is otherwise denied without prejudice to the parties bringing further
summary judgment motions once discovery is completed. Defendants’ counsel is
directed to immediately contact Magistrate Judge Feldman’s chambers to Request a
Scheduling Order.
So Ordered.
Dated:
Rochester, New York
December 18, 2013
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
19
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