Opinion
01 Civ. 8444 (SAS)
July 2, 2002
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
On January 24, 2001, Horace Abney, proceeding pro se, brought this action pursuant to section 1983 of Title 42 of the United States Code ("§ 1983") against New York State Department of Corrections ("DOCS") employees John McGinnis, Mario Malvarosa, Paul Wilson and Ann Arckert (collectively, the "DOCS defendants"), as well as orthotics specialist Michael Di Pompo. See Complaint ("Compl."); Second Amended Complaint ("SAC"). Plaintiff alleges that both the DOCS defendants and defendant Di Pompo were indifferent to his medical needs in violation of his Eighth Amendment rights. See Compl. ¶ V. All defendants now move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground that plaintiff failed to exhaust all available administrative remedies. See Memorandum of Law in Support of DOCS Defendants' Motion to Dismiss ("DOCS Def. Mem.") at 1; Memorandum of Law in Support of Defendant Di Pompo's Motion to Dismiss ("Di Pompo Mem.") at 2. For the reasons discussed below, the motions are granted.
Defendant McGinnis is the superintendent of Downstate Correctional Facility ("Downstate"). Defendant Malvarosa is a physician employed by Downstate, and defendant Wilson is a physician's assistant at the facility. Defendant Arckert is employed by Dowhstate as a Registered Nurse. See Amended Complaint ("Am. Compl.") ¶¶ III(B)-(E).
It is well established that deliberate indifference to an inmate's serious medical needs is a form of cruel and unusual punishment in violation of the Eighth AZnendment. See Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)).
II. FACTUAL BACKGROUND
In 1993, .plaintiff underwent foot surgery while he was an inmate at Downstate. See SAC ¶ 2. Following the surgery, plaintiff was diagnosed as "permanently flat footed[,]" and he "requir[ed] orthopedic shoes and archi supports" to relieve the pain of his condition. Id. ¶ 3. After being released in early 1996, plaintiff was again imprisoned in Downstate beginning April 28, 1999. See id. ¶ 5.
Almost immediately, plaintiff complained to defendant Arckert about his need for continued orthopedic care. See id. ¶ 6. Plaintiff then complained to defendants Malvarosa and Wilson about the lack of care for his flat feet. See id. ¶ 8. Plaintiff alleges that his complaints went unheeded for a period of three months. See id. On July 12, 1999, plaintiff filed an Inmate Grievance Complaint (a "Grievance"). On appeal, Superintendent McGinnis ruled that Downstate must schedule a "podiatry appointment" for plaintiff. 7/27/99 Superintendent Appeal Decision on 7/12/99 Grievance, Ex. A to Am. Compl.; see 7/12/99 Grievance. Downstate requested that defendant Di Pompo examine and provide orthotics for plaintiff. See SAC ¶ 10.
This Grievance was numbered DS-3846-99, and plaintiff requested to "be provided the proper footwear and medical treatment." 7/12/99 Grievance, Ex. A to Am. Compl.
Di Pompo furnished plaintiff with arch supports and orthopedic boots on August 30, 1999. See id. Plaintiff alleges that this treatment was inadequate and, in fact, further aggravated the pain in his feet. See id. Plaintiff complained to defendants McGinnis, Arckert, Malvarosa, Wilson and Di Pompo about his continued medical problems from August 30, 1999 to September 24, 2001. See id. ¶¶ 7, 11-19. Plaintiff filed three Grievances during this period. See id. ¶¶ 18, 21, 30. Each Grievance was appealed to defendant McGinnis, and each Grievance recognized plaintiff's continuing need for orthopedic treatment. See Downstate Grievances. Plaintiff did not appeal any of these Grievances beyond defendant McGinnis. See id. Plaintiff sent his Complaint to this Court's Pro Se Office on January 24, 2001, although it was not filed until September 7, 2001.
Plaintiff's other Grievances included: DS-3995-00, filed August 21, 2000; DS-4033-00, filed November 20, 2000; DS-4093-01, filed April 16, 2001. See Grievances Filed at Downstate (the "Downstate Grievances"), Ex. A to Plaintiff's Memorandum in Opposition to Defendants' Motion to Dismiss, at 1-10 (original unnumbered) . All of the Downstate Grievances requested some form of medical treatment for plaintiff's flat feet. See id.
On September 24, 2001, plaintiff was transferred to Eastern Correctional Facility ("Eastern"). See SAC ¶ 40. Plaintiff continued to file Grievances alleging a continued lack of adequate orthopedic care after his transfers to Eastern, and then to Woodbourne Correctional Facility ("Woodbourne"). See 11/14/01 Grievance, Ex. 1 to Plaintiff's Surreply to Defendants' Motion to Dismiss ("Surrep1y"); 11/26/01 Grievance, Ex. 2 to Surreply; 3/1/02 Grievance, Ex. 3 to Surreply; 4/3/02 Grievance, Ex. 4 to Surreply (collectively, the "Further Grievances"). The only Grievance plaintiff appealed to the Central Office Review Committee ("CORC") was the 4/3/02 Grievance. See 4/3/02 Grievance, Ex. 4 to Surreply, at 6 (original unnumbered)
III. LEGAL STANDARD
A motion to dismiss should be granted only 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." Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000) (internal quotation marks and citation omitted). "At the Rule 12(b)(6) stage, `[t]he issue is not whether a plaintiff is likely to prevail ultimately, but-whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.'" Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998) (internal quotation marks omitted)). The task of the court in ruling on a Rule 12(b)(6) motion is "`merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" Sims 230 F.3d at 20 (quoting Ryder Energy Distrib. Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984) (internal quotatiop marks omitted)).
When deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must "take as true all of the allegations contained in plaintiff's complaint arid draw all inferences in favor of plaintiff." Weinstein v. Albright, 261 F.3d 127, 131 (2d Cir. 2001). Courts should "include in this analysis not only the assertions made within the four corners of the complaint itself, but also those contained in documents attached to the pleadings or in documents incorporated by reference." Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001)
Because "most pro se plaintiffs lack familiarity with the formalities of pleading requirements, [courts] must construe pro se complaints liberally, applying a more flexible standard to evaluate their-sufficiency." Lerman v. Board of Elections in the City of New York, 232 F.3d 135, 140 (2d Cir. 2000) (citing v. Rowe, 449 U.S. 5, 9-10 (1980) and Haines v. Kerner, 404 519, 520-21 (1972)). Finally, courts must remain "mindful care exercised in this Circuit to avoid hastily dismissing complaints of civil rights violations." Gregory, 243 F.3d 691.
IV. PLAINTIFF FAILED TO EXHAUST AVAILABLE REMEDIES
All defendants argue that plaintiff failed to exhaust available administrative remedies before filing this Complaint. See DOCS Def. Mem. at 1; Di Pompo Mem. at 2. The Prisoner Litigation Reform Act ("PLRA") states that "no action shall be brought with respect to prison conditions under section 1983 of this title . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). This 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, 122 S.Ct. 983, 992 (2002). Inmates must therefore exhaust all administrative remedies, at all levels of appeal, in order for their claims to survive a motion to dismiss. See Hemphill v. New York, 198 F. Supp.2d 546, 548 (S.D.N.Y. Apr. 19, 2002).
Defendant Di Pompo also argues that this Court lacks jurisdiction over the claim against him because he is not a state actor. See Di Pompo Mem. at 1-2. Because plaintiff's claims are dismissed for failure to exhaust available remedies, I need not reach this question.
DOCS has created a three-tiered Grievance process for all prisoner complaints. See N.Y. Comp. Codes R. Regs. tit. 7, § 701.7. First, an inmate must file a Grievance with the Inmate Grievance Resolution Committee (the "IGRC"), which is composed of fellow inmates and various prison officials. See id. § 701.7(a) Second, if the inmate is dissatisfied with the IGRC decision, he must appeal to the superintendent of the facility. See id. § 701.7(b). Third, if the inmate does not receive a favorable decision from the superintendent, he must appeal to the CORC. See id. § 701.7(c)4 The superintendent's response at the second level must provide "simple directions on how this decision may be appealed" to the CORC. Id. § 701.7(b)(5). The Grievance process is then complete and the inmate, if still dissatisfied, may bring a complaint in the appropriate court. See Hemphill, 198 F. Supp.2d at 548.
Plaintiff filed a number of Grievances concerning his need for medical care. See Downstate Grievances; Further Grievances. In almost all cases, plaintiff appealed the decisions of the IGRC to the superintendent of the respective institution. See id. In most cases, the superintendent agreed with plaintiff's Grievances. See id. However, the resulting care failed to satisfy plaintiff. See id. Plaintiff only appealed one Grievance to the CORC. See 4/3/02 Grievance, Ex. 4 to Surreply, at 6. Plaintiff filed his Complaint in January 2001, well before his April 3, 2002 Grievance was filed or appealed. See id. Compl.
The PLRA requires a plaintiff to exhaust all available administrative remedies before a complaint is filed. See 42 U.S.C. § 1997e(a). Thus, only the Downstate Grievances (and respective appeals) filed before January 24, 2001 may be considered in determining exhaustion. Plaintiff never appealed a Grievance to the CORC prior to filing this Complaint. See Downstate Grievances. Because plaintiff failed to timely appeal to the CORC his Complaint must be dismissed for failure to exhaust administrative remedies.
The same result has been reached by various lower courts applying Porter. For example, in Concepcion v. Commissioner of Dep't of Corr. Servs., No. 97 Civ. 1569, 2002 WL 1186180, at *1 (S.D.N.Y. May 31, 2002), Judge Miriam Cedarbaum dismissed an inmate's suit "because he did not appeal his Grievance to the CORC." See also Kearsey v. Williams, No. 99 Civ. 8646, 2002 WL 1268014, at *2 (S.D.N.Y. June 6, 2002) (holding that when an inmate "has failed to exhaust his available administrative remedies, including all appellate remedies, dismissal is mandatory") (citing Waters v. Schneider, No. 01 Civ. 5217, 2002 WL 727025, at *1 (S.D.N.Y., Apr. 23, 2002) (emphasis added)).
V. CONCLUSION
For the foregoing reasons, plaintiff's Complaint against the DOCS defendants and defendant Di Pompo is dismissed for failure to exhaust available administrative remedies. The Clerk of the Court is directed to close this case.