O P I N I O N

Sweet, D.J.,

Defendants Ms. Williams as emergency room nurse and Charles Greiner as Superintendent of the Sing Sing Correctional Facility (the "Defendants"), have moved to dismiss the complaint of pro se plaintiff Kevin McKinnis ("McKinnis") pursuant to Rule 12(b) Fed.R.Civ.P. for failure to timely exhaust available administrative remedies, failure to satisfy the three-year statute of limitations in New York for claims brought pursuant to § 1983, and failure to state a claim upon which relief can be granted. For the reasons stated, McKinnis' complaint is dismissed.

Parties, Prior Proceedings and Facts

McKinnis is an inmate under the custody of the State of New York Department of Correctional Services ("DOCS"). He alleges that while he was at Sing Sing, the Defendants were deliberately indifferent to his medical needs with respect to a toe injury he sustained on April 29, 1997. McKinnis alleges that defendant Williams, a nurse at Sing Sing, denied him medical treatment and that defendant Greiner, the superintendent of Sing Sing, failed to insure he received adequate medical care while under his custody.

On May 2, 1997, McKinnis filed a grievance against Nurse Williams, requesting that her supervisor speak to her about denying medical treatment to inmates. On August 5, 1997, Superintendent Greiner responded to the grievance by stating that it had been resolved because Nurse Williams was no longer employed by DOCS.

On October 26, 1998, McKinnis filed a grievance asking for medical treatment which had been recommended by the surgeon or that he continue to receive treatment that was being given by Dr. Shapiro for the pain in his left foot. He also wanted medical shoes that should have been ordered for his condition. On November 16, 1998, Superintendent Greiner responded to the grievance by stating that a flat shoe had already been ordered and that there was no medical basis for McKinnis to continue seeing Dr. Shapiro. It was also noted that McKinnis was receiving the treatment that was outlined for him. Though the administrative procedures set up for such complaints provided for an appeal, McKinnis did not appeal the decision.

The instant suit was filed on November 1, 2000, pursuant to 42 U.S.C. § 1983. This motion to dismiss was marked fully submitted on April 25, 2001.

McKinnis Failed to Exhaust Administrative Remedies

Con gress enacted the PLRA in order to deter frivolous prisoner lawsuits and to discourage courts from "micro-managing" prison systems.See, Nicholas v. Tucker, 114 F.3d 17, 19 (2d Cir. 1997). Accordingly, the PLRA requires that a prisoner exhaust his administr ative remedies prior to bringing an action in federal court. See, Salahuddin v. Mead, 174 F.3d 271, 274 n. 1 (2d Cir. 1999). As pointed out in the Defendants' brief, there is a complex and fairly comprehensive review process set up within DOCS for addressing complaints such as McKinnis'. McKinnis has failed to follow his grievance through that process and has thus not "exhausted" the available remedies under that regime.

However, McKinnis raises the issue that the relief he seeks — namely money damages — are not "available" under the DOCS administrative review regime. Therefore, he contends, exhaustion is not necessary and not required. The issue is unresolved in this Circuit and has split numerous other courts. Several decisions by courts have held that the administrative exhaustion requirement of the PLRA is inapplicable where a plaintiff seeks monetary relief, and where such relief is not available through the administrative process. Compare Garrett v. Hawk, 127 F.3d 1263, 1267 (10th Cir. 1997) (holding that the administrative exhaustion requirement of the PLRA inapplicable in those cases where the administrative process does not provide for the relief requested); Whitley v. Hunt, 158 F.3d 882, 886-87 (5th Cir. 1998) (same); Lunsford v. Jumao-As, 155 F.3d 1178, 1179 (9th Cir. 1998) (same); Polite v. Barbarin; No. 96 Civ. 6818, 1998 WL 146687, at*2 (S.D.N.Y. March 25, 1998) (same), with Majid v. Wilhelm, 110 F. Supp.2d 251, 256-257; Nyhuis v. Reno, 204 F.3d 65, 67 (3rd Cir. 2000) (holding that exhaustion is required even where ultimate relief sought is not available); Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999) (same); Perez v. Wisconsin Dep't of Corrections, 182 F.3d 532, 537-38 (7th Cir. 1999) (same); Alexander v. Hawk, 159 F.3d 1321, 1325-28 (11th Cir. 1998) (same); Santiago v. Meinsen, 89 F. Supp.2d 435, 443 (S.D.N.Y. 2000); Cruz v. Jordan, 80 F. Supp.2d 109, 116-117 (S.D.N.Y. 1999) (same); Vasquez v. Artuz, No. 97 Civ. 8427, 1999 WL 440631, at *6 (S.D.N.Y. June 28, 1999) (same); Edney v. Karrigan, 69 F. Supp.2d 540, 544 (S.D.N.Y. 1999) (same) (collecting cases); Beeson, 28 F. Supp.2d at 889 (same).

Previously, "[t]his Court adopt[ed] the position taken by a significant number of other courts that, prior to filing suit under Section 1983, an incarcerated plaintiff must exhaust administrative remedies even where he seeks money damages not recoverable under the established grievance procedure." Edney v. Karrigan, 69 F. Supp.2d 544. However, it is unnecessary to reach a conclusion on this point since McKinnis' claim is dismissed on other grounds.

Consideration of the Statute of Limitations in New York for § 1983 Actions

In New York, claims brought pursuant to § 1983 are governed by a three-year statute of limitations. Owens v. Okure, 488 U.S. 235, 249-251 (1989); Singleton v. City of New York, 632 F.2d 185, 189 (2d Cir. 1980). Additionally, state tolling rules govern federal actions brought pursuant to § 1983 except where inconsistent with federal policy underlying § 1983. Singleton, 632 F.2d at 191 (citing Board of Regents of Univ. of N.Y. v. Tomanio, 446 U.S. 478 (1980)).

Since McKinnis has filed this claim more than three years after his injury, the issue has arisen whether the time spent pursuing administrative remedies should be tolled under N.Y. C.P.L.R. § 204, which provides that "Where the commencement of an action has been stayed by a court or by statutory prohibition, the duration of the stay is not a part of the time within which the action must be commenced." Though the issue need not be decided, a brief discussion is warranted.

This court has held that a pending Article 78 Proceeding in N.Y. State Court did not toll the statute of limitations for a § 1983 action.Leigh v. McGuire, 507 F. Supp. 458 (S.D.N.Y. 1981); see also, Tomanio, 446 U.S. at 468 (finding that no section of New York law provides "that the time for filing a cause of action is tolled during the period in which a litigant pursues a related, but independent cause of action.")but, c.f., Barchet v. New York City Transit Authority, 20 N.Y.2d 1, 281 N.Y.S.2d 289, 228 N.E.2d 361 (1967) (holding one-year statute of limitation with respect to action against New York City Transit Authority was tolled from time plaintiff commenced proceeding to obtain leave of court to file a late notice of claim until order of Special Term granting that relief appeared in New York Law Journal, the date upon which it was to take effect). The Defendants argue that McKinnis should not receive the benefit of tolling of the statute during the time he was pursuing his administrative remedies. However, Leigh v. McGuire, was distinguished from Barchet v. New York City Transit Authority on the grounds that a judicial abstention doctrine is not equivalent to a statutory requirement that prohibits prosecution of an action.

Here, there is a statutory framework which prohibits suit until administrative remedies have been exhausted. Therefore, the Defendants' invitation to dismiss the complaint on statute of limitation grounds is declined.

The Complaint is Dismissed for Failure to State a Claim upon Which Relief May be Granted

In order to establish an Eighth Amendment claim arising from inadequate medical care, a prisoner must prove "deliberate indifference to his serious medical needs." Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). Plaintiff must establish that prison officials intentionally denied or delayed access to medical care or intentionally interfered with prescribed treatment. See id. at 104-05. The deliberate indifference standard incorporates an objective prong and a subjective prong. The inmate must establish (1) that the deprivation is "sufficiently serious" and (2) that the prison official has a sufficiently culpable state of mind. See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). A sufficiently serious medical deprivation exists where there is "a condition of urgency, one that may produce death, degeneration or extreme pain." Id. at 66. A sufficiently culpable state of mind on the part of prison officials exists where the officials are aware of the prisoner's serious need and deliberately disregard it. Id. at 68.

Examples of conditions considered by the Second Circuit Court of Appeals to be "sufficiently serious" under the Eighth Amendment vary a great deal, but include the failure to provide prescribe d medication in the face of an inmate's extreme weight loss and deteriorating condition,see Kaminsky v. Rosenblum, 929 F.2d 922, 924 (2d Cir. 1992), a delay in removing broken pins from a prisoner's hip for more than two years despite nearly fifty complaints of pain, see Hathaway, 37 F.3d at 65-6, and chronic tooth pain lasting at least six months, rendering the prisoner unable to chew, and resulting in as many as three teeth degenerating to the point of requiring extraction, see Chance, 143 F.3d at 702.

McKinnis' alleged injury to his toe does not rise to the level of "serious medical need". See, e.g., Wood v. Housewright, 900 F.2d 1332 (9th Cir. 1990) (broken pin setting in injured s houlder insufficient);Jones v. Lewis, 874 F.2d 1125 (6th Cir. 1989) (mild concussion and broken jaw insufficient); Alston v. Howard, 925 F. Supp. 1034 (S.D.N.Y. 1996) (ankle pain after surgery not sufficiently serious).

To establish the subjective component, McKinnis would have to demonstrate that defendants "kn[ew] of and disregard[ed] an excessive risk to [his] health or safety." Farmer v. Brennan, 511 U.S. 825, 837 (1994). Prison officials are not liable "if they responded reasonably to a known risk, even if the harm ultimately was not averted." Farmer, 511 U.S. at 826; see also Estelle, 429 U.S. at 106-7 (prisoner not entitled to treatment by every medical alternative as long as treatment is reasonable).

Thus, negligence or medical malpractice is insufficient to support a claim of deliberate indifference. See Hendricks v. Coughlin, 942 F.2d at 113; see also Estelle, 429 U.S. at 105-06. Moreover, mere differences of opinion regarding medical treatment do not give rise to an Eighth Amendment violation. See Estelle, 429 U.S. at 107; see also Chance, 143 F.3d at 703. Thus, to the extent McKinnis contests the diagnosis and treatment that he received, he does not state a valid claim of medical mistreatment under the Eighth Amendment.

Finally, the complaint fails to demonstrate that Defendants violated plaintiff's Eighth Amendment rights by acting with deliberate indifference to any serious medical need. In the complaint, McKinnis acknowledges that he received medical treatment for his alleged injury. In particular, he alleges that Dr. Andrew Shapiro was numbing his toe with an injection to stop the pain when he walks, thus conceding that he was prescribed and administered local anesthesia. The complaint also alleges that the doctor considered surgery to remove some bone.

Accordingly, plaintiff fails to state a claim of deliberate indifference to serious medical needs and his complaint is dismissed.

Conclusion

For the reasons stated, McKinnis' complaint is dismissed for failure to state a claim upon which relief can be granted pursuant to Rule 12(b) Fed.R.Civ.

It is so ordered.