Opinion
Civil Action No. 9:12-CV-1250 (MAD/DEP)
02-10-2015
LUIS CASTRO, Plaintiff, v. HEATH, Superintendent, Greene Correctional Facility, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: LUIS CASTRO, Pro Se 09-A-1553 Wallkill Correctional Facility Box G Wallkill, NY 12589 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN New York State Attorney The Capitol Albany, NY 12224-0341 OF COUNSEL: JAMES SEAMAN, ESQ. Assistant Attorney General
APPEARANCES:
FOR PLAINTIFF: LUIS CASTRO, Pro Se
09-A-1553
Wallkill Correctional Facility
Box G
Wallkill, NY 12589
FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN
New York State Attorney
The Capitol
Albany, NY 12224-0341
OF COUNSEL: JAMES SEAMAN, ESQ.
Assistant Attorney General
DAVID E. PEEBLES U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
In this action, which was commenced pursuant to 42 U.S.C. § 1983, pro se plaintiff Luis Castro, a New York State prison inmate, alleges that the three defendants named in his complaint, as amended, have deprived him of his civil rights. Plaintiff's claims stem from his contention that a right ear condition was not properly treated by medical personnel at the correctional facility in which he was confined at the relevant times.
The defendants have moved for summary judgment dismissing plaintiff's complaint arguing that (1) plaintiff is precluded from pursuing his medical indifference claims because he failed to fully exhaust available administrative remedies before commencing suit, and (2) in any event, no reasonable factfinder could conclude that plaintiff did not receive adequate medical treatment for his ear condition as guaranteed under the Eighth Amendment to the United States Constitution. For the reasons set forth below, because I find that plaintiff failed to exhaust available administrative remedies before commencing this action, I recommend that his claims be dismissed on this procedural basis. I. BACKGROUND
In light of the procedural posture of the case, the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in plaintiff's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
Since 2009, plaintiff has been a prison inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). See generally Dkt. No. 32; see also Dkt. No. 50-18 at 13-15. Although he is now confined elsewhere, at the times relevant to his claims, including between March and August of 2012, Castro was confined at the Greene Correctional Facility, located in Coxsackie, New York ("Greene"). See generally Dkt. No. 32.
During the time of his confinement with the DOCCS, plaintiff has experienced manifestations of chronic ear problems, initially developed during his childhood. Dkt. No. 50-18 at 12. While at Greene, plaintiff received medical treatment for that condition, overseen by defendant Dr. Patrick F. Caulfield, a physician employed on a part-time basis by the DOCCS. See generally Dkt. No. 50-3.
On or about July 19, 2012, plaintiff prepared a grievance claiming that, despite requesting to be seen at sick call, and by a doctor, he was not seen by any medical professionals. Dkt. No. 32 at 6; Dkt. No. 50-10 at 2, 10. The grievance was acknowledged by the Grievance Clerk at Greene on July 23, 2012, and was assigned identification number GNE-7663-12. Id. Following an investigation, the Inmate Grievance Review Committee ("IGRC") at Greene issued a decision, dated August 7, 2012, denying the grievance. Dkt. No. 32 at 7; Dkt. No. 50-10 at 3. There is no record of plaintiff having appealed that unfavorable determination to defendant Heath, the Superintendent at Greene, or to the DOCCS Central Office Review Committee ("CORC"). Dkt. No. 50-9 at 3; Dkt. No. 50-13 at 3; Dkt. No. 50-15 at 1-2; Dkt. No. 50-16 at 1-2.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on or about August 6, 2012. Dkt. No. 1. His original complaint named only Greene Superintendent Heath and a nurse employed at the facility, identified only as "Jane Doe #1," as defendants, and asserted claims of retaliation in violation of the First Amendment, deliberate medical indifference in violation of the Eighth Amendment, and negligence under New York State common law. See generally id.
In response to plaintiff's complaint, defendant Heath filed a pre-answer motion for summary judgment seeking dismissal of plaintiffs claims based on the merits and plaintiff's alleged failure to exhaust available administrative remedies. Dkt. No. 13. Plaintiff failed to respond in opposition to defendant's summary judgment motion, instead submitting a letter to the court requesting leave to file an amended complaint asserting the same claims as those set forth in his original complaint but adding Dr. Caulfield and Nurse Administrator Joy Albright, two DOCCS employees stationed at Greene, as additional defendants. Dkt. No. 17. In response to those cross-motions, I issued a report dated August 1, 2013, recommending that plaintiff be granted leave to amend his complaint but concluding that only his medical indifference claim as against the defendants in their individual capacities should remain viable, and recommending dismissal of all other claims. Dkt. No. 29. In that report, I also recommended that consideration of defendants' exhaustion argument be deferred, as premature, in light of plaintiff's allegation in the amended complaint that he filed three grievances concerning the treatment of his ear condition. Id. My report and recommendation was adopted by District Judge Mae A. D'Agostino in an order dated September 23, 2013. Dkt. No. 30. As a result of Judge D'Agostino's order, plaintiff's amended complaint was approved and accepted for filing.
Plaintiff submitted his request for leave to file an amended complaint on or about November 8, 2012. Dkt. No. 17. Plaintiff's amended complaint, however, bears the date July 18, 2012, the date appearing in his original complaint. Id. at 3; see also Dkt. No. 1 at 3. Plaintiff explained at his deposition that he dated his amended complaint the same as his original complaint because he "thought [he] had to write the same date [he] wrote the [original] complaint." Dkt. No. 50-18 at 30-31.
On June 20, 2014, following the close of discovery, defendants again moved for summary judgment dismissing plaintiff's complaint. As in the predecessor motion, in their most recent application, defendants argue both that plaintiff's claims are procedurally barred based upon his failure to exhaust available administrative remedies and that his deliberate medical indifference cause of action, the only remaining claim, lacks merit. Dkt. No. 50-22 . In their motion, defendants also assert entitlement to qualified immunity from suit. Id. In response to defendants' motion, plaintiff has filed a submission consisting of only a single paragraph reiterating his claim that defendants did not properly care for his ear condition, causing him to lose hearing in his right ear. Dkt. No. 53.
Defendants' motion, which is now ripe for determination, has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Plaintiff's Failure to Submit a Responsive Rule 7.1(a)(3) Statement
Although plaintiff opposed defendants' motion for summary judgment with a brief response, he did not address defendants' statement of undisputed material issues of fact submitted pursuant to rule 7.1(a)(3) of the local rules of practice for this court. See generally Dkt. No. 53. Before turning to the merits of defendants' motion, a threshold issue to be addressed is the legal significance of this failure.
This court's local rules provide that any motion for summary judgment must be accompanied by a statement of material facts as to which, the moving party submits, there exists no genuine dispute. N.D.N.Y. L.R. 7.1(a)(3). The rule further requires that each fact listed set forth a specific citation to the record where the fact is established. Id.
In this instance, defendant's motion was accompanied by a proper rule 7.1(a)(3) statement, including corresponding record citations. Dkt. No. 50-21 . The motion also included a notice to plaintiff of the consequences of failing to properly respond to the summary judgment motion, which stated that, "[i]f [plaintiff] do[es] not submit a proper response to the defendants' statement of material facts, the Court may deem [him] to have admitted the defendants' factual statements." Dkt. No. 50 at 3 (emphasis in original).
Rule 7.1(a)(3) provides that "[t]he Court shall deem admitted any facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." N.D.N.Y. L.R. 7.1(a)(3) (emphasis in original). Under this rule, plaintiff's failure to respond to the defendants' rule 7.1(a)(3) statement is the functional equivalent of his admission of the material facts contained with the statement for purposes of the instant motion. See Elgamil v. Syracuse Univ., No. 99-CV-611, 2000 WL 1264122, at *1 (N.D.N.Y. Aug. 22, 2000) (McCurn J.) (listing cases); see also Monahan v. N.Y. City Dep't of Corrs., 214 F.3d 275, 292 (2d Cir. 2000) (discussing district courts' discretion to adopt local rule 7.1(a)(3); Ketchuck v. Boyer, No. 10-CV-0870, 2011 WL 5080404, at *2 (N.D.N.Y. Oct. 25, 2011) (McAvoy, J.) ("[T]he responding Statement of Material Facts is not a mere formality, and the courts apply this rule strictly." (listing cases)).
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
B. Exhaustion of Administrative Remedies
In their motion for summary judgment, defendants first argue that plaintiff's amended complaint is subject to dismissal based upon his failure to exhaust available administrative remedies before commencing suit. Dkt. No. 50-22 at 4-7. As was noted above, plaintiff has not responded to this argument. Dkt. No. 53.
The Prison Litigation Reform Act of 1996 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), which imposes several restrictions on the ability of prisoners to maintain federal civil rights actions, expressly requires that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, 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); see also Woodford v. Ngo, 548 U.S. 81, 84 (2006) ("Exhaustion is . . . mandatory. Prisoners must now exhaust all 'available' remedies[.]"); Hargrove v. Riley, No. 04-CV-4587, 2007 WL 389003, at *5-6 (E.D.N.Y. Jan. 31, 2007) ("The exhaustion requirement is a mandatory condition precedent to any suit challenging prison conditions, including suits brought under Section 1983."). "[T]he PLRA's 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). In the event the defendant establishes that the inmate plaintiff failed "to fully complete[] the administrative review process" prior to commencing the action, the plaintiff's complaint is subject to dismissal. Pettus v. McCoy, No. 04-CV-0471, 2006 WL 2639369, at *1 (N.D.N.Y. Sept. 13, 2006) (McAvoy, J.); see also Woodford, 548 U.S. at 93 ("[W]e are persuaded that the PLRA exhaustion requirement requires proper exhaustion."). "Proper exhaustion" requires a plaintiff to procedurally exhaust his claims by "compl[ying] with the system's critical procedural rules." Woodford, 548 U.S. at 95; accord, Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007).
While placing prison officials on notice of a grievance through less formal channels may constitute claim exhaustion "'in a substantive sense,'" an inmate plaintiff nonetheless must meet the procedural requirement of exhausting his available administrative remedies within the appropriate grievance construct in order to satisfy the PLRA. Macias, 495 F.3d at 43 (quoting Johnson v. Testman, 380 F.3d 691, 697-98 (2d Cir. 2004) (emphasis omitted)).
The DOCCS makes available to inmates a grievance procedure entitled the Inmate Grievance Program ("IGP"). The IGP is comprised of three steps that inmates must satisfy when they have a grievance regarding prison conditions. 7 N.Y.C.R.R. § 701.5; Mingues v. Nelson, No. 96-CV-5396, 2004 WL 324898, at *4 (S.D.N.Y. Feb. 20, 2004). Embodied in 7 N.Y.C.R.R. § 701, the IGP requires that an inmate first file a complaint with the facility's IGP clerk within twenty-one days of the alleged occurrence. 7 N.Y.C.R.R. § 701.5(a)(1). If a grievance complaint form is not readily available, a complaint may be submitted on plain paper. Id. A representative of the facility's IGRC has up to sixteen days after the grievance is filed to informally resolve the issue. Id. at § 701.5(b)(1). If there is no such informal resolution, then the full IGRC conducts a hearing within sixteen days after receipt of the grievance. Id. at § 701.5(b)(2).
A grievant may then appeal the IGRC's decision to the facility's superintendent within seven days after receipt of the IGRC's written decision. Id. at § 701.5(c). The superintendent must issue a written decision within a certain number of days after receipt of the grievant's appeal. Id. at § 701.5(c)(i), (ii).
Depending on the type of matter complained of by the grievant, the superintendent has either seven or twenty days after receipt of the grievant's appeal to issue a decision. Id. at § 701.5(c)(i), (ii).
The third and final step of the IGP involves an appeal to the DOCCS CORC", which must be taken within seven days after receipt of the superintendent's written decision. Id. at § 701.5(d)(1)(i). The CORC is required to render a written decision within thirty days of receipt of the appeal. Id. at § 701.5(d)(2)(i).
As can be seen, at each step of the IGP process, a decision must be rendered within a specified time period. Significantly, "[a]ny failure by the IGRC or the superintendent to timely respond to a grievance or first-level appeal, respectively, can - and must - be appealed to the next level, including CORC, to complete the grievance process." Murray v. Palmer, No. 03-CV-1010, 2010 WL 1235591, at *2 (N.D.N.Y. Mar. 31, 2010) (Hurd, J., adopting report and recommendation by Lowe, M.J.) (citing, inter alia, 7 N.Y.C.R.R. § 701.6(g)(2)).
Generally, if a plaintiff fails to follow each of the required three steps of the above-described procedure prior to commencing litigation, he has failed to exhaust his administrative remedies. See Ruggerio v. Cnty. of Orange, 467 F.3d 170, 176 (2d Cir. 2006) ("[T]he PLRA requires proper exhaustion, which means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)." (quotation marks omitted)).
In addition to being codified in Title 7 of the New York Codes, Rules and Regulations, the IGP is set out in detail in DOCCS Directive No. 4040. Dkt. No. 50-9 at 1. Both Title 7 and Directive No. 4040 are available in the law library at Greene for the benefit of inmates. Id. In addition, as part of the orientation process upon transfer into Greene, inmates are given instruction concerning the grievance program and the procedures for filing grievances and grievance appeals. Id. at 2.
Plaintiff initially availed himself of the IGP by filing a grievance concerning his medical care in July 2012, identified as GNE-7663-12 and dated July 19, 2012. Dkt. No. 32 at 6; Dkt. No. 50-9 at 3; Dkt. No. 50-10 at 2. Upon the filing of that grievance, plaintiff was issued a memorandum from the IGP supervisor, dated July 23, 2012, acknowledging receipt of the grievance, advising that an investigation would be conducted "followed by a formal hearing conducted by the [IGRC]," and informing plaintiff that if he disagrees with the IGRC's decision, he can appeal it to the facility superintendent and thereafter to the CORC. Dkt. No. 50-10 at 9. The record reveals that the IGRC did not issue a determination concerning plaintiff's grievance until August 7, 2012. Dkt. No. 32 at 7; Dkt. No. 50-10 at 3. It is therefore clear that plaintiff did not complete even the first step of the IGP, much less the requirement that he appeal to the superintendent and to the CORC, prior to July 28, 2012, the date of his complaint, or even by August 6, 2012, when his original complaint was received by the court. Dkt. No. 1.
At his deposition in connection with case, plaintiff testified that he copied his grievance and sent it to the CORC on or about August 7, 2012. Dkt. No. 50-18 at 32-33. In contrast, defendants have submitted evidence suggesting that plaintiff did not file any correspondence, including any appeals of any grievances, to either defendant Heath, the Greene superintendent, or the CORC. Dkt. No. 50-9 at 3; Dkt. No. 50-13 at 3; Dkt. No. 50-15 at 1-2; Dkt. No. 16 at 1-2. Additionally, in their rule 7.1(a)(3) statement of undisputed material facts, defendants stated, with supporting record citations, that the CORC has no record of plaintiff appealing his grievance identified as GNE-7663-12. Dkt. No. 50-21 at 17. Plaintiff's failure to respond to the defendants' statement, as discussed above in part III.A. of this report, renders this fact admitted.
Nevertheless, even assuming plaintiff could prove that he fully exhausted available administrative remedies after filing this action, his amended complaint would still be subject to dismissal. Pursuant to the PLRA, complete exhaustion, including satisfaction of all steps of the IGP, must occur before an action is commenced. See Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001), overruled on other grounds by Mojias v. Johnson, 351 F.3d 606, 610-11 (2d Cir. 2003), ("Subsequent exhaustion after suit is filed . . . is insufficient[.]").
Ordinarily, a finding that an inmate-plaintiff failed to exhaust available administrative remedies would require the court to make a further inquiry as to whether there is any basis to excuse the requirement of exhaustion under the Second Circuit's three-part test for determining that issue. See, e.g., Hemphill v. N.Y., 380 F.3d 680, 686 (2d Cir. 2004); see also Macias, 495 F.3d at 41. In accordance with those decisions the court is required to determine whether (1) administrative remedies were actually available to the plaintiff at the relevant times; (2) the defendants have forfeited the affirmative defense of non-exhaustion by their failing to properly raise it, or through their actions in preventing exhaustion; and (3) special circumstances justify the plaintiff's failure to comply with the applicable administrative procedure requirements. Macias, 495 F.3d at 41; Hemphill, 380 F.3d at 686. In this instance, no suggestion has been made that plaintiff was in any way hindered in the pursuit of his grievance. Nor does plaintiff allege that defendants should be estopped from asserting the exhaustion defense, or that special circumstances exist justifying his failure to exhaust.
Defendants have raised exhaustion as an affirmative defense to plaintiff's claims. Dkt. No. 42 at 3; Dkt. No. 50-31 at 3.
Because it is clear from the record now before the court that plaintiff did not fully exhaust available remedies before commencing this action, and no basis has been established for excusing the exhaustion requirement, I recommend that his complaint be dismissed on this procedural basis without the necessity of reaching the merits of his Eighth Amendment deliberate indifference claim.
Even if the court were to reach the merits of plaintiff's deliberate medical indifference claims, it is doubtful that they could successfully withstand the defendants' summary judgment motion. The record now before the court, including excerpts from plaintiff's DOCCS ambulatory health records and comprehensive declarations submitted by defendants Albright and Caulfield, chronicle intensive medical treatment provided to plaintiff for his chronic ear condition, including referrals to outside medical specialists. See, e.g., Dkt. Nos. 50-3 - 50-5; Dkt. No. 51.
IV. SUMMARY AND RECOMMENDATION
While plaintiff initially took steps to comply with the requirement that he lodge a grievance with prison officials and pursue it to completion before commencing this action, he filed this action prematurely. Indeed, plaintiff commenced this suit before even receiving an initial determination from the IGRC with respect to that grievance, and therefore without first having appealed the adverse determination to the superintendent at Greene and onto the CORC. In light of this failure, plaintiff is now precluded from maintaining this action addressing the same issues as set forth in his grievance. It is therefore hereby respectfully
RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 50) be GRANTED, and that plaintiff's amended complaint in this action be DISMISSED in its entirety for failure to exhaust available administrative remedies.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
/s/_________
David E. Peebles
U.S. Magistrate Judge
Dated: February 10, 2015
Syracuse, New York