Opinion
No. 03 Civ. 4433 (GBD).
April 29, 2005
MEMORANDUM OPINION AND ORDER
Pro se plaintiff brings suit asserting violations of his Eighth Amendment rights by defendants who allegedly denied him appropriate medical treatment. Defendants move to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and (6). Defendant's motion to dismiss is granted.
In his Memorandum of Law in Opposition to Defendants Motion to Dismiss, plaintiff withdrew his claims against defendant Fischer. All claims against defendant Fischer are therefore dismissed.
BACKGROUND
Pro se plaintiff Luis Sanchez, a prisoner at Sing Sing Correctional Facility, filed his initial complaint on September 26, 2002, alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983. The District Court dismissed plaintiff's negligence claim and his Eighth Amendment claim of inadequate medical care, finding that plaintiff's allegations "cannot sustain an action under § 1983 in their present form." Order dated June 19, 2003 at 2. The District Court also held that plaintiff failed to allege that he exhausted his administrative remedies as to his Eighth Amendment claim. Plaintiff, however, was granted leave to file an amended complaint, which he did on August 19, 2003.
In his amended complaint, plaintiff alleges that he was denied appropriate medical attention by defendants Conklin and Halko stemming from an incident where he "ingested a bandage" he found in his sandwich. Amended Complaint, ¶ 4. After finding a used bandage in his meal at the mess hall, plaintiff, at his request, was taken to the facility hospital and examined by defendant Conklin, a nurse at the facility. Plaintiff alleges that despite his requests, Conklin "refused to give plaintiff medical attention to assist in regurgitating any further substance in his digestive tract." Id. Instead, Conklin "advised plaintiff to see defendant [Doctor] Halko" the next day.Id. Plaintiff saw defendant Halko, a physician at the facility, three days later. Halko allegedly tested plaintiff for HIV and also prescribed for plaintiff "180 capsuls (sic) of 100 mg AZT, 30 day supply," a drug used to treat HIV, before knowing whether plaintiff suffered from HIV. Id. Plaintiff was not found to be HIV positive.
Plaintiff claims to have suffered specific injuries as a result of Nurse Conklin's and Dr. Halko's actions. First, plaintiff alleges that Dr. Halko's prescription of AZT caused him to suffer "side effects from AZT" including "nausea, abdominal pains, [and] headaches." Id., ¶ 4-A. Furthermore, nine months after the incident occurred, during the period between June 15, 2001 and June 21, 2001, plaintiff was diagnosed with Hepatitis A and B, which he claims was a result of Nurse Conklin's failure to provide him with immediate and adequate medical attention. Id., ¶ 4.
On September 23, 2000, plaintiff filed a grievance with the Inmate Grievance Resolution Committee ("IGRC"). See Exhibit A. In his grievance, plaintiff claims that despite his complaints to defendant Conklin, she refused to give him any medication to assist him to vomit the food he ate.
I explained to them what happened and Ms. Co[n]klin took notes, wrote something in the Hospital Book, and I made a small statement too. Then I asked for some medication or something to vomit the food that I ate just in case I swallowed any infested blood with AIDS, illness, sickness, but for more that I tried, the nurses didn't want to give me anything. Reason? I don't know. What I know for sure is that they work for the State of New York, and after that they didn't worry about me or what I had.See Inmate Grievance Form, Exhibit A, Plaintiff's Opposition to Motion to Dismiss ("Plaintiff's Opposition"). Plaintiff also sought better supervision of mess hall food as well as an investigation to discover the origin of the bandage that he found in his tuna fish sandwich, "because if there is no investigation at this time, may be the same person will do it again, to me or to somebody else." See Exhibit A, at 1. The Grievance Complaint makes no mention of Dr. Halko.
The IGRC responded to plaintiff's Grievance Complaint, accepting that "staff should be reminded that they should wear glove at all times while working with food." See Superintendent's Report, Exhibit B, Plaintiff's Opposition to Defendants' Motion to Dismiss. Plaintiff then appealed the IGRC's findings to the Superintendent. The Superintendent's reports states:
Grievant wants to know who threw a band aid into his food in the messhall.
Investigation determined that grievant allegedly found a band aid in his meal. CO Scott stated that she did not see the band aid. Grievant was taken to the E.R. by staff. Grievant's ambulatory health records indicates that there was `no blood' on the band aid. Although unfortunate, this appears to be isolated and may be due to a staff member or inmate not wearing gloves. . . . Lastly, there is no means by which to determine the source of the band aid.
Grievance accepted only to the extent that proper procedures are in place and have been reinforced.Id.
Plaintiff appealed the Superintendent's decision to the Central Office Review Committee ("CORC"). See Inmate Grievance Program Central Office Review Committee Report, Exhibit B, Plaintiff's Opposition to Defendants' Motion to Dismiss. In the section titled "Action Requested," plaintiff asks that
[t]he state mess hall food should be more supervised by civilians, the cooks, and officers, that food is not for dogs. I would like that administration, security, cooks make an investigation to know who was the person(s) that threw the bandage in the tuna fish on 9/23/00, because if there is no investigation at this time, maybe the same person will do it again, to me or to somebody else.Id. The CORC found that
[u]pon full hearing of the facts and circumstances in the instant case, and upon recommendation of the Division of Nutritional Services, the action requested herein is hereby accepted only to the extent that CORC upholds the determination of the Superintendent for the reasons stated.
CORC notes that the grievant received appropriate medical attention and appropriate administrative action was taken by the facility.Id.
On July 23, 2001, plaintiff sent the Nurse Administrator a letter complaining of his treatment for Hepatitis A and B. Plaintiff does not name defendant Conklin in his letter. His complaints, however, stem from his current treatment for Hepatitis A and B. "I'm complaining to you on this letter, because you as the Nurse Administrator, your doctors, your P.A. (S) and your nurses should know that after a person has been tested and the results came positives for hepatitis B and A needs to have medical treatment." Lastly, defendants alleges that he received hepatitis A and B on "September 23, 2000, when I was eating a cold Tuna Fish Sandwich in the State Masshall (sic). I'm not going to recall that incident, but Dr. Halko knows the story about a Bandage that was in my mouth." Exhibit C, Plaintiff's Opposition to Defendants' Motion to Dismiss. In response to his letter, the Nurse Administrator informed plaintiff by letter that there is currently no medication for the treatment of hepatitis B and that the prison system was "developing a policy for treatment, and when it is offered you will be assessed for treatment." Id.
Plaintiff then submitted a second Grievance Complaint on August 12, 2001, complaining of his inability to obtain medical treatment for his Hepatitis A and B. The Superintendent denied plaintiff's request finding that "grievant has been advised by the medical department of the protocol for his condition. [The Medical Department] stated that grievant's condition is being monitored and grievant has on many occasions, been advised on the course of treatment. Plaintiff appealed the Superintendent's findings to the CORC. In their response, the CORC noted that "the grievant's medical condition does not warrant treatment via medication. CORC notes that the grievant has been provided with the appropriate medical care and advises the grievant to continue to address this concern with medical staff via sick call as necessary." Exhibit D, Plaintiff's Opposition to Defendants' Motion to Dismiss. The CORC further found that it was not "presented with sufficient evidence to substantiate any malfeasance by the employees referenced in the complaint." Id.
Plaintiff asserts that defendants violated his Eighth Amendment rights by denying him "adequate preventative medical treatment for his condition." See Amended Complaint, ¶ 4-A. Plaintiff seeks judgment from each defendant in the amount of $250,000 totaling $500,000 for their "inactions to plaintiff's medical needs." Plaintiff's Amended Complaint, ¶ 5. Defendants move to dismiss plaintiff's claims: (1) against Dr. Halko because plaintiff failed to exhaust his administrative remedies; (2) against all defendants on the basis that plaintiff has not shown that defendants acted with deliberate indifference to his serious medical needs; and (3) against all defendants on the basis of qualified immunity and because this Court lacks jurisdiction under the Eleventh Amendment.
DISCUSSION
In deciding a motion to dismiss, the Court must accept all of the plaintiff's allegations as true, and only dismiss the complaint if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99-100 (1957). Pro se complaints, however inartfully pleaded are held to "less stringent standards than formal proceedings drafted by lawyers." Haines v. Kerner 404 U.S. 519, 92 S.Ct. 596, (1972). The court thus construes pro se complaints liberally. Id., 594. However, in lawsuits alleging a violation of constitutional rights, "a complaint consisting of nothing more than naked assertion, and setting forth no facts upon which a court could find a violation of the Civil Rights Act, fails to state claim under Rule 12(b)(6)." Martin v. N.Y.S. Dep't of Mental Hygiene 588 F.2d 371, 372 (2d Cir. 1978).
A. Exhaustion of Administrative Remedies
The Prisoner Litigation Reform Act of 1995 (" PLRA") provides that "[n]o action shall be brought with respect to prison conditions under § 1983 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).Leacock v. New York City Health Hosp. Corp., Slip Copy, 2005 WL 483363 S.D.N.Y. 2005. Although the PLRA refers to "prison conditions," the 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." Porter v. Nussle 534 U.S. 516, 532 (2002). The exhaustion remedy of the PLRA mandates exhaustion of all available administrative remedies in instances where an inmate is alleging that prison officials were deliberately indifferent to his or her medical needs. Renelique v. Doe 2003 WL 23023771, at *11 (S.D.N.Y. Dec. 29, 2003). Because Sanchez' claims fall within the scope of the PLRA, he was required to have exhausted all administrative remedies available to him prior to bringing suit. Orta v. City of New York Dep't of Corr., 2003 WL 58856, at *2 (S.D.N.Y. Feb. 25, 2003). In order to satisfy the exhaustion requirement under PLRA, a prisoner, "must pursue his challenge to the conditions in question through the highest level of administrative review prior to filing his suit." Flanagan v. Maly 2002 WL 12291, at *2 (S.D.N.Y. Jan. 29, 2002) *10.
New York State regulations provide for a three-step administrative review process. See 7 N.Y.C.R.R. § 701.7. First, "an inmate must submit a complaint to the Grievance Clerk within 14 calendar days of an alleged occurrence." Id., § 701.7(a)(1). The grievance is then submitted to the inmate grievance resolution committee ("IGRC") for investigation and review. If the IGRC's decision is appealed, the inmate may appeal to the superintendent of the facility, and if the superintendent's decision is appealed, the CORC makes the final administrative determination. See id., § 701.7. In general, it is only after exhausting all three levels of the administrative review that a prisoner may seek relief pursuant to 42 U.S.C. § 1983 in federal court. See Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001). Furthermore, New York regulations require that inmates provide specific descriptions of the problem and action requested as well as identify the persons or areas contacted to resolve the complaint within their grievances. See 7 N.Y.C.R.R. § 701.7(a)(1)(i).
On the basis of this factual record, plaintiff's claims against Dr. Halko must be dismissed for failure to exhaust administrative remedies. Plaintiff filed two separate grievances in relation to the bandage incident in the messhall and has appealed each grievance both to the superintendent and to the CORC. In short, he has exhausted all three levels of the administrative review that a prisoner is required to seek. In each of these filings, however, plaintiff made mention of Dr. Halko only once, in a letter to the Nurse Administrator dated July 23, 2001. He makes no allegation against Dr. Halko, stating only that "Dr. Halko knows the story about a Bandage that was in my mouth." Exhibit C, Plaintiff's Opposition to Defendants' Motion to Dismiss. Despite his numerous submissions and appeals, plaintiff made no allegations against Dr. Halko and made no claims that Dr. Halko failed to treat him properly. Indeed, this lawsuit is the first time that plaintiff has made any claim that Dr. Halko treated him improperly for his medical needs. See Evans v. G. Manos, 336 F.Supp.2d 255, 259 (W.D.N.Y. 2004) (dismissing pro se plaintiff's claims against dentist for failure to exhaust when "there is simply no suggestion anywhere in plaintiff's grievance that [the dentist] . . . had failed to provide him with adequate dental care."). Plaintiff's claims against Dr. Halko are dismissed for failure to exhaust his administrative remedies. See Luckerson v. Goord, 2002 U.S. Dist. LEXIS 13297, at *5 (S.D.N.Y. Jul. 22, 2002) (finding that litigating a federal suit based on allegations that were never made at the administrative level would make a "mockery of the exhaustion requirement.").
B. Eighth Amendment
The Eighth Amendment prohibits the infliction of cruel and unusual punishment. U.S. CONST. amend. VIII. In order to prove an Eighth Amendment violation, plaintiff must demonstrate that the defendants acted with deliberate indifference to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The first element a plaintiff must allege is a `sufficiently serious' deprivation of medical treatment, i.e., a deprivation reasonably likely to result in death, degeneration, or extreme pain. See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (internal quotation omitted); see also Harrison v. Barkley, 219 F.3d 132, 136-137 (2d Cir. 2000) ("A serious medical condition exists where the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain.") (internal quotation and citation omitted). Only those deprivations which deny the "minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment claim . . . because society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eight Amendment violation only if those needs are serious." Hudson v. McMillian, 503 U.S. 1, 9 (1992). Second, plaintiff must allege facts tending to show that the defendant acted "with a sufficiently culpable state of mind," i.e., that the defendant knew of and disregarded the excessive risk to the inmate's health arising from the deprivation of medical treatment. Id. (citingFarmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)).
Plaintiff's allegations fail to demonstrate that Nurse Conklin's actions amounted to a sufficiently serious deprivation of his medical needs. On the day in question, plaintiff was brought to the infirmary and treated by "two nurses, Ms. Conklin and Ms. Jones." Exhibit A, Plaintiff's Opposition to Defendants' Motion to Dismiss. Although he requested medicine to help him vomit the food he had just ingested, Nurse Conklin allegedly refused and instructed plaintiff to meet with Dr. Halko. Moreover, there are no factual allegations that, at the time of his examination by Nurse Conklin, plaintiff possessed a medical condition that could be considered an emergency condition that might result in either degeneration or extreme pain. Indeed, plaintiff's claim that he contracted Hepatitis A and B from this incident and that Nurse Conklin's failure to give him medicine to cause him to regurgitate his meal is devoid of any supportive factual allegations. See Estelle, 429 U.S. at 106, 97 S.Ct. 285 (finding that a prisoner's "complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eight Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner"). As plaintiff has failed to allege conduct on behalf of Nurse Conklin that is "repugnant to the conscience of mankind," or "incompatible with the evolving standards of decency that mark the progress of a maturing society," his claim must be dismissed. Id. at 102, 105-106, 97 S.Ct. 285.
Plaintiff has also not demonstrated that Nurse Conklin acted with a sufficiently culpable state of mind and subjectively knew of and disregarded an excessive risk to his health and safety. Plaintiff admitted in his complaint that Nurse Conklin examined him on the day of the alleged incident and advised him to see Dr. Halko on the following day, September 24, 2000. See Complaint, ¶ 3. Her alleged refusal to follow his suggestion that he be given medicine to regurgitate food which he believed may have contained infected blood does not amount to a constitutional violation. An inmate's "mere disagreement over the proper treatment does not create a constitutional claim. So long as the treatment given is adequate, the fact that the prisoner might prefer a different treatment does not give rise to an Eighth Amendment violation." Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998). Nurse Conklin responded reasonably to plaintiff's medical complaint. She did so in a timely manner, and was not deliberately indifferent to his health needs. His claims against Nurse Conklin are therefore also dismissed.
It should be noted that although plaintiff's claims against Dr. Halko are dismissed for failure to exhaust administrative remedies, the allegations against Dr. Halko similarly fail to state a claim.
CONCLUSION
Defendant Dr. Halko's motion to dismiss for failure to exhaust administrative remedies is granted. Defendant Nurse Conklin's motion to dismiss for failure to satisfy the Eighth Amendment standard for deliberate indifference is also granted.SO ORDERED.