Opinion
02 Civ. 5960 (GEL).
August 2, 2004
James Oates, pro se, for plaintiff.
Brooke Birnbaum, Caryn Rosencrantz, Assistant Corporation Counsel, Michael A. Cardozo, Corporation Counsel of the City of New York, for defendants.
OPINION AND ORDER
By letter dated April 30, 2004, plaintiff in the above-captioned case has sought reconsideration of this Court's Opinion and Order dated April 2, 2004, dismissing his claims on the ground that plaintiff had failed to exhaust administrative remedies, as required by the Prison Litigation Reform Act (" PLRA"), 42 U.S.C. § 1997e(a). Oates v. City of New York, No. 02 Civ. 5960, 2004 WL 744611 (S.D.N.Y. Apr. 6, 2004). His complaint alleges that the New York City Department of Corrections ("DOC") failed to protect him from an assault by another inmate and failed to provide adequate medical treatment following the assault. The Court held that plaintiff was required to exhaust administrative remedies despite the fact that he was no longer a DOC inmate, and despite his having filed a grievance after he had commenced the present action.
By Order dated May 12, 2004, plaintiff's letter was accepted by the court as a motion for reconsideration or reargument under Rule 6.3 of the Local Rules of the United States District Court for the Southern District of New York and Rule 59(e) of the Federal Rules of Civil Procedure, and as a motion to extend time to request reargument. The request for an extension of time was granted nunc pro tunc, the defendants were given an opportunity to respond, and the parties have engaged in additional letter briefing through July 8, 2004.
Although plaintiff also filed an appeal of the April 2 Order on May 19, 2004, which would normally divest the District Court of jurisdiction, see Camacho v. United States, 302 F.3d 35, 36 (2d Cir. 2002), a Rule 59(e) motion for reconsideration has the effect of holding an appeal in abeyance. Fed.R.App.P. 4(a)(4)(B)(i) (providing that when a motion is pending pursuant Rule 59 and other enumerated rules, a notice of appeal does not become effective until that motion is decided); Tamayo v. City of New York, No. 02 Civ. 8020 (HB), 2004 WL 725836, at *2 (S.D.N.Y. Mar. 31, 2004). This Court therefore retains jurisdiction to decide plaintiff's motion for reconsideration notwithstanding the filing of an appeal.
In its April 2 Opinion, the Court noted that "DOC maintains an administrative procedure through which plaintiff could have grieved his claims." Id. at *1. Oates now raises two arguments in support of reconsideration: (1) that assaults on prison inmates are non-grievable under the applicable DOC grievance procedures, and (2) that his inadequate medical care claims are not grievable because they are "against employees of a private medical contractor," and are therefore "outside the jurisdiction of the Department of Correction." (P. Br. ¶¶ 1-2.)
Plaintiff also argues that he did not have to grieve his claims through DOC because the grievance procedure was unavailable to him following his transfer to a State facility. (Supplemental letter to the Court from James Oates of July 8, 2004, at 1.) This argument was considered and rejected in the Court's April 2 opinion. See Oates v. City of New York, 2004 WL 744611, at *2. That decision was based not on the fact that plaintiff had been transferred to a new facility, but on the fact that plaintiff had failed to file a grievance while in DOC custody for the nine months between his injury and his transfer to State custody.
Under Local Rule 6.3 and Fed.R.Civ.P. 59(e), reconsideration is appropriate when the Court has "overlooked controlling decisions or factual matters that were put before it on the underlying motion." Davis v. The Gap, Inc., 186 F.R.D. 322, 323 (S.D.N.Y. 1999). As the Court noted in its April 2 Opinion, Oates's initial opposition to defendants' motion argued the merits of his claims extensively, without addressing defendants' exhaustion argument. He therefore failed to raise any significant response to the defense of exhaustion. The Court's April 2 Order assumed that DOC's grievance procedure applied to plaintiff's claims, and the plaintiff did not argue otherwise. The new arguments plaintiff now raises, however, call into question the availability of the administrative remedies he failed to pursue for his particular claims. As the Second Circuit has held, "a court considering dismissal of a prisoner's complaint for non-exhaustion must first establish from a legally sufficient source that an administrative remedy is applicable and that the particular complaint does not fall within an exception."Mojias v. Johnson, 351 F.3d 606, 610 (2d Cir. 2003). The portions of the DOC Inmate Rule Book describing the DOC grievance procedures, on which plaintiff relies, were in fact before the Court on the initial motion (see Decl. of Caryn Rosencrantz, dated Jan. 23, 2004, Ex. G), although neither party called attention to the language plaintiff now claims renders his complaints non-grievable. The Court now perceives that it failed adequately to establish that an administrative remedy was in fact available on plaintiff's claims before granting defendants' motion for summary judgment.
Turning first to the claim that DOC personnel failed to protect the plaintiff from the assault that led to his injuries, defendants now candidly and commendably concede that this claim could not have been pursued under the DOC grievance procedures. Defendants now agree, "[a]fter careful review of the New York City Department of Correction Inmate Handbook," that claims arising from assault fall under an exception to the grievance procedures rendering complaints "pertaining to an alleged assault" non-grievable. (D. Br. 1; see also Rosencrantz Decl. Ex. G.) They therefore retract the portion of the briefs submitted in support of the original moving papers arguing that such claims were grievable, and concede that "because plaintiff would not necessarily be afforded the opportunity to grieve his inmate on inmate assault claim, this claim should not be dismissed for failure to file a grievance with DOC." (Id.)
Defendants state that they had initially interpreted the applicable provision of the grievance procedure as covering only "assaults caused by DOC staff" and not "inmate on inmate assaults" (D. Br. 1), but now recognize that the exception covers both types of assaults.
Accordingly, Oates has established that the Court overlooked a critical fact about the grievance procedure that was in the record before it, which vitiates defendants' argument, accepted by the Court in its earlier Opinion, that Oates had failed to exhaust his administrative remedies. As plaintiffs now concede, plaintiff's claim of failure to protect "is [n]ot [g]rievable and [s]hould [n]ot be [d]ismissed." (Letter of Brooke Birnbaum to the Court, dated June 2, 2004, at 1.) The Court's dismissal of that claim will therefore be vacated.
Defendants continue to argue, however, that plaintiff's claim of deliberate indifference to his medical care was correctly dismissed for failure to exhaust. It is well established that complaints of inadequate medical care in prison are claims regarding "prison conditions" that are squarely covered by the PLRA. Neal v. Goord, 267 F.3d 116, 120 (2d Cir. 2001). Claims such as plaintiff's regarding delays in treatment while inmates are in custody have frequently been dismissed for failure to exhaust DOC grievance procedures. See, e.g., Arroyo v. City of New York, 99 Civ. 1458, 2003 WL 22211500, at *1 (S.D.N.Y. Sept. 25, 2003) (dismissing for failure to exhaust administrative remedies inadequate medical care claim brought by inmate at Rikers Island against an employee of Correctional Health Services). However, on his motion for reconsideration, plaintiff points out that the DOC grievance procedure contains another exception for "matters outside the jurisdiction of the Department of Correction" (Rosencrantz Decl. Ex. G), and asserts that because his claims are against the Correctional Health Services division of the Health and Hospitals Corporation ("CHS"), which is apparently responsible for medical services in the City jails, and not against DOC personnel, his claims are not covered by the applicable DOC grievance procedures. Resolving this argument requires some parsing of plaintiff's claims of inadequate medical care.
In his pending complaint, plaintiff asserts, in essence, (a) that DOC delayed provision of medical treatment, both immediately following the assault and in the weeks afterward, and (b) that after he was seen by his treating neurologist, CHS failed to provide him with the follow-up MRI screening that had been ordered, leading to a worsening of his injuries. (2d Amended Compl. ¶¶ 20, 24, 27.) With respect to the former claim, Oates has not made any allegation or produced any evidence demonstrating that any of the personnel involved in the challenged delays were employees of any entity other than DOC. He avers only that when he asked to see the doctor in the hours following the assault, "he was not taken to the clinic by Supervisor Mitil until . . . approximately 3½ hours later" (id. ¶ 20), and that when he began to experience pain and requested medical attention, he "was not seen by a doctor until approximately 3 weeks later" (id. ¶ 24). Plaintiff has raised no allegations against any medical personnel with respect to these delays; rather, this claim appears to lie solely against corrections personnel for failure to bring him to the clinic. Thus, plaintiff's claim would inevitably be subject to established DOC grievance procedures. Neal v. Goord, 267 F.3d at 120.
While the complaint is reasonably read to make this claim, it is noteworthy that Oates himself has asserted that he is "not [asserting] a medical claim against . . . Supervisor Mitil." (Letter of James Oates to the Court and ACC Birnbaum, dated June 25, 2004.)
Plaintiff's allegation regarding the delay following his neurological screening presents a closer question. Oates asserts that after he was seen by a neurologist who recommended an MRI, "Correctional Health Services failed to follow up on the neurologist['s] recommendation." (Id. ¶ 27.) Without identifying any particular official or employee who "failed to follow up," Oates attributes that failure to CHS generally, and therefore to medical personnel apparently outside of DOC. Thus, this claim could fall under the exception for complaints that are outside of DOC jurisdiction.
The only individual named defendant that Oates asserts is not a DOC employee is Dr. Rafeal, M.D. In his briefing papers (though not in his complaint), Oates asserts that Dr. Rafeal is "an employee of a private medical contractor." (Letter of James Oates to Court dated June 4, 2004; P. Br. ¶¶ 1-2.) However, the complaint asserts no claim of delay or inadequate care against Dr. Rafeal in particular. The sole allegation regarding Dr. Rafeal is that he "asked the plaintiff to sign blank form entitled injury to inmate report" and "stated to the plaintiff return to the clinic if necessary." (2d Amended Compl. ¶ 22.) This states no colorable claim of inadequate medical treatment. Dr. Rafeal is not mentioned in the remainder of the complaint. Thus, there is no allegation of any wrongdoing against Dr. Rafeal that would be subject to a grievance in the first place, or that would state a cause of action against him.
Defendants have not challenged plaintiff's factual allegations about who performed the challenged medical care. Rather, they counter that "[t]he law is clear that claims of inadequate medical treatment and/or deliberate indifference, regardless of who the claim is against, are grievable." (D. Br. 2.) But a recent Second Circuit case against various employees of St. Barnabas Hospital, Timmons v. Pereiro, No. 03-7190, 2004 WL 322702, at *2 (2d Cir. Feb. 18, 2004) (summary order), suggests that the law is less clear than defendants think. InTimmons, the Second Circuit held that a district court had "improperly dismissed the claim [for inadequate medical care] because it did not identify an available and applicable administrative remedy that [plaintiff] failed to exhaust." Moreover, the Corporation Counsel had stipulated on appeal that the district court's dismissal of medical claims had been incorrect because claims against the hospital employees were not covered by the DOC grievance procedure. See id. at *1-*2. The Court vacated the district court's dismissal of plaintiff's claims and remanded with instructions to determine whether the plaintiff had exhausted administrative procedures available through the New York City Department of Health. Id.
Several Courts of Appeals, including our own, prefer to pretend that "unpublished" opinions (which of course are published electronically in databases in which they are searchable interchangeably with those opinions the Courts of Appeals are prepared to acknowledge) do not exist. While recognizing that such opinions do not constitute binding precedent in the Second Circuit, this Court finds even the less-considered words of distinguished panels of judges highly persuasive. At any rate, Timmons is primarily relevant here not for the teachings of the Court, but for the position taken by the City.
Similarly, the record here is inadequate to support summary judgment that plaintiff's complaints of deliberate indifference to his health by CHS personnel would be considered within the jurisdiction of DOC for purposes of its grievance procedure. The one case they cite in which medical claims against CHS employees were dismissed for failure to exhaust was decided prior to bothMojias and Timmons, and did not discuss whether claims against the named defendants fell within the jurisdiction of the DOC grievance procedure. See Arroyo, 2003 WL 22211500, at *2. And while Timmons does not have precedential value under the rules of this Circuit, at the very least the summary order in that case indicates that DOC may have taken inconsistent positions in different litigations on the question of whether such complaints are within DOC jurisdiction. See 2004 WL 322702, at *2.
The other case cited by defendants, Hernandez, concerned an inmate within the New York State, rather than the City, prison system, and is therefore not relevant to the question of what types of claims are excluded from the NYC DOC grievance procedure.
For the reasons stated above, the only aspect of plaintiff's medical claim that survives is the claim that CHS personnel were deliberately indifferent to his health and safety in failing to follow up on the recommended MRI examination. It must be emphasized, moreover, that this claim hangs by a slender reed. The allegations in question do not apply to any individual defendant; it is unclear what if any theory would permit liability against the City of New York; and it is unclear whether the claim of a delayed MRI can suffice to establish a claim of deliberate indifference in any event. But defendants have not yet raised any of these issues, and the Court does not decide them. Defendants moved for summary judgment solely on the exhaustion issue, and that is the only matter the Court has addressed.
Defendants' exhaustion motion was filed before the completion of discovery. As a result, a factual record has not been fully developed regarding the merits of plaintiff's surviving claims and the applicability of the DOC grievance procedure (or any other possible administrative remedies, see Timmons, 2004 WL 322702, at *2) to the medical indifference claim. The parties must therefore be afforded the opportunity to gather and present evidence and to raise additional arguments.
CONCLUSION
Accordingly, plaintiff's motion for reconsideration is granted, and the Court's April 2 Opinion and Order dismissing plaintiff's claims is vacated as to the claims of (1) failure to protect against assault and (2) deliberate indifference to health concerning the failure to provide a follow-up MRI examination. Discovery may be resumed, with all fact discovery to be completed by October 1, 2004. Additional dispositive motions, if any, shall be filed by October 29, 2004. Opposition papers, if any, shall be filed by November 29, 2004. Reply papers, if any, shall be filed by December 13, 2004.