Opinion and Order

BARBARA JONES, District Judge

Plaintiff pro se Russell Manley brings this action against Defendants, alleging violations of his federal constitutional rights 28 U.S.C. § 1983 Defendants have moved to dismiss this action For the reasons set forth below, Defendants' motion is DENIED

BACKGROUND

On or about June 29, 1999, while confined at the Fishkill Correctional Facility, Plaintiff sustained a laceration on the thumb of his right hand and severed a nerve When he reported to the prison medical clinic, Plaintiff's thumb was stitched by Physician's Assistant Macomber, who did not realize that a nerve had been severed (Compl ¶ 6) At some later date, Plaintiff was examined at the clinic by Dr. J. J. Francis, who referred plaintiff to a hand surgeon for a consultation. The hand surgeon examined Plaintiff, determined that Plaintiff had lost full movement of his right thumb, and recommended that surgery be performed to restore the lost movement. (Compl. ¶ 7).

Dr. Francis reviewed the hand surgeon's report and recommended to the Facility Health Service Director that the surgery be performed. The Facility Health Service Director forwarded the consultation report to United Correctional Managed Care Inc., the facility's health care provider, who denied the request for Plaintiff's surgery. (Compl. ¶ 8).

After the recommendation for Plaintiff's surgery was denied, Plaintiff began experiencing pain in his thumb He repeatedly went to the prison clinic for medical attention, complaining of pain and restricted movement When he was unable to obtain relief from the prison clinic, Plaintiff filed a grievance complaint I.G.P. Supervisor Goidel responded to Plaintiff's grievance and advised him that the facility's request for surgery had been denied by the facility's health care provider Supervisor Goidel further advised Plaintiff that if he "disagree [d] with this decision," he should contact Dr. A Lang, Regional Medical Director at Arthurkill Correctional Facility he wished to pursue a formal grievance. (Compl. ¶ 9).

"Plaintiff pursued a formal grievance, and the Inmate Grievance Resolution Committee ("IRGC") submitted a recommendation stating: "We recommend grievant appeal CPS [healthcare provider] denial to Dr. A. Lang, Regional Medical Director at Arthur Kill C.F." (Compl. ¶ 10). Plaintiff appealed the IRGC response to Defendant Superintendent Mazzuca, who stated that he "concur[red] with the recommendation of the I.G.R.C." (Compl. ¶ 11).

Plaintiff filed a further appeal with Defendant Thomas Eagen at the Inmate Grievance Program Central Office Review Committee ("CORC"). Defendant Eagen denied Plaintiff's grievance on January 31, 2001, stating in part:

CORC concurs with the Superintendent in that the surgical referral submitted by the facility for an Orthopedic appointment in March was denied by the health care provider. CORC notes that proper medications were ordered by the doctor. The grievant has been seen at sick call for complaints regarding pains in his left hand. However, there is no record that the grievant has made any complaints regarding pain in his right hand.

(Compl. ¶ 12; Ex. 5). Plaintiff wrote to Dr. A. Lang on March 21, 2001, requesting a review of the health care provider's determination. He received no response. (Compl. ¶ 13).

DISCUSSION

A. The "Proper Avenue" for Relief

Defendants ask the Court to dismiss Plaintiff's complaint because Plaintiff "willingly chose the wrong avenue to address his complaint about his medical treatment, solely for the purpose of bringing this lawsuit." (Def. Mem. at 4-5). Defendants state that if Plaintiff had raised his complaints with Dr. Lang, "he could have received the treatment he now seeks here prior to filing this lawsuit, and this complaint would be moot." (Def. Mem. at 5). Defendants rely on 42 U.S.C. § 1997e(c) for their argument that the Court should dismiss Plaintiff's Complaint because of his "manipulative and duplicitous behavior." (Def. Mem. at 5).

Plaintiff states that he pursued his grievance rather than simply contacting Dr. Lang because he believed that if he failed to file all necessary appeals, he would be considered to have abandoned his administrative remedies. Plaintiff was concerned about pursuing available administrative remedies becuase he believed that he would have no ability to challenge Dr. Lang's finding if it were adverse to him. (Pl. Mem. at 1-3). Rather than using the grievance process in a manipulative fashion, Plaintiff claims that he was simply attempting to follow Department of Correction procedures. Moreover, after he exhausted his administrative remedies, Plaintiff sent a letter to Dr. Lang.

Title 42 U.S.C. § 1997e(c) states, in relevant part, that a court shall dismiss a prison conditions case if the action "is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief." Because this is a motion to dismiss the complaint, the Court must accept all of Plaintiff's factual allegations as true and does not find them frivolous. Barnett v. Int'l Bus. Machines, 885 F. Supp. 581, 585 (S.D N.Y. 1995) Moreover, the Court accepts Plaintiff's explanation that he was not acting in a malicious manipulative manner when he pursued administrative remedies before contacting Dr. Lang. Thus, this action will not be dismissed pursuant to 42 U.S.C. § 1997e(c)

B. Personal Involvement

"In this Circuit, personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983 " McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977), cert. denied, 434 U.S. 1087 (1978). A plaintiff may allege personal involvement of supervisory defendant if he alleges: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) Here, Plaintiff alleges that Defendants Mazzuca and Eagen, "after learning of plaintiff's injury, pain and suffering, were deliberately indifferent towards plaintiff's rights under the Eighth and Fourteenth Amendments [and] grossly negligent in their duties " (Compl. at p. 5-6) Defendants argue that Plaintiff's claims should be dismissed because he fails to allege sufficient personal involvement on the part of the named Defendants.

Defendent Mazzuca, after receiving Plaintiff's grievance appeal, took no action. Instead, he told Plaintiff that he "concurred with the recommendation of the I.G.R.C." (Compl. ¶ 11). Defendants rely on Colon v. Coughlin for their argument that this review of Plaintiff's grievance is insufficient to establish personal involvement. (Def. Mem. at 6-7). The Court disagrees.

In Colon, the Superintendent took no action in response to a letter the plaintiff had mailed to him complaining about unconstitutional conduct. The court found that the Superintendent was not liable because plaintiff was already scheduled to have a hearing on the same issue. The court saw "no reason why [the Superintendent] should have intervened in advance of an established procedure in which Colon was to be given the opportunity to substantiate the claim that he made in his letter " Colon, 58 F.3d at 873 Defendants attempt to analogize the facts at issue here, stating that Defendant Mazzuca "directed plaintiff to the proper avenue to voice his complaint about his medical treatment" —i.e., directed him to contact Dr Lang — and, because that was the established procedure for an inmate to

As an initial matter, Defendants have failed to provide any authority that would allow the Court to conclude that directing an inmate to contact the facility's health provider was the "established procedure" or even the "proper avenue for relief Moreover, unlike the two personal involvement cases Defendant relies upon — Colon v. Coughlin and Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997) — where the plaintiffs had merely written letters directly to the Superintendent, Defendant Mazzuca's involvement in this case arose in the context of Plaintiff's appeal of the IRGC decision Therefore, Plaintiff has alleged sufficient personal involvement to defeat Defendants' motion to dismiss

2. Defendant Eagen

Defendants concede that Defendant Eagen "investigated, or at least directed C O R C to investigate, plaintiff's allegations " (Pl Mem at 8). Yet Defendants maintain that claims against Defendant Eagen should be dismissed because "Eagen properly performed the duties of his position " (Id.)

Since Defendants concede that Defendant Eagen either directed someone else to investigate Plaintiff's claims or performed the investigation himself, the Court does not understand how Defendant Eagen was not sufficiently involved to properly perform his duties as an issue of fact.

Therefore, dismissal of Plaintiff's claims against Defendant Plaintiff's Eagen is not appropriate.

C. Qualified Immunity

"[G]overnment officials performing discretionary functions' generally are granted a qualified immunity and are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Wilson v. Layne, 526 U.S. 603, 609 (1999) (internal quotations and citations omitted). Defendants concede that prison officials who are deliberately indifferent to an inmate's medical needs violate an inmate's clearly established constitutional rights. (Pl. Mem. at 11). However, Defendants nonetheless claim that they are immune from this suit because, as explained by the Second Circuit inCuoco v. Moritsugu, 222 F.3d 99 (2d Cir. 2000), it is reasonable for a non-medical prison official to refrain from interfering in the medical treatment of a prisoner. The Court disagrees.

As an initial matter, the Court notes that the Second Circuit in Cuoco stated that the plaintiff's "failure to intervene" claim should have survived the defendants' motion to dismiss, but nonetheless affirmed the district court's judgment because the motion to dismiss had been converted to a motion for plaintiff in Cuoco sought to hold the defendants liable for failing to contravene the medical decisions of her doctors. Id. Here, Plaintiff is challenging the Defendants' failure to help him receive the treatment recommended by his doctors. Thus, the finding of reasonableness in Cuoco is inapposite.

The Court denies Defendant's motion to dismiss on grounds of qualified immunity, but will allow the Defendants leave to renew this motion after the close of discovery.

CONCLUSION

Defendants' motion to dismiss is denied. The Defendants are directed to appear before the Court on Tuesday, February 17, 2004 at 11:00 a.m. for a conference to discuss the status of this case.

SO ORDERED.