Opinion
06 Civ. 15528 (SAS).
July 23, 2007
Plaintiff (Pro Se):, Cedric Partee, # 84-A-5009, Fishkill Correctional Facility, Beacon, New York.
For Defendants:, Benjamin Lee, Assistant Attorney General, New York, NY.
OPINION AND ORDER
I. INTRODUCTION
Cedric Partee, an inmate of the New York State Department of Correctional Services ("DOCS"), proceeding pro se, brings suit under section 1983 of Title 42 of the United States Code against Glenn Goord, Lester N. Wright, William J. Connolly, and Lawrence Zwillinger, all of whom are present or former DOCS employees, and Mary D'Silva, a dentist at Fishkill Correctional Facility (collectively, "Defendants"). Partee alleges that all of the defendants acted with deliberate disregard for his medical needs in violation of his rights under the Eighth and Fourteenth Amendments. He seeks an award of $100,000 against each defendant.
Former Commissioner Goord is sued incorrectly herein as "Glenn Grood."
Superintendent Connolly is sued incorrectly herein as "William J. Connoll."
See Complaint ("Compl.") ¶¶ II(D), V.
See id. ¶ V.
Defendants now move to dismiss the lawsuit based on Partee's failure to exhaust administrative remedies. Defendants additionally move to dismiss the claims against Goord, Zwillinger, Connolly and Wright, claiming qualified immunity and lack of personal involvement, and, with regard to Goord and Zwillinger, for failure to state a claim. For the reasons below, defendants' motion is granted and this case is dismissed.
See 42 U.S.C. 1997e(a).
II. FACTS
The following factual allegations, taken from the Complaint, are accepted as true for purposes of this motion.
In April of 2003, while Partee was being housed as a prisoner in Clinton Correctional Facility, his dentures were damaged as a result of "self adjustment." Dr. Afzal, an employee of the Clinton Correctional Facility, submitted a request to the "Central Office Director of Dental Services" for Partee to receive new dentures, which was denied because Partee was "ineligible to receive new dentures until 4/12/06." On April 17, 2003, Partee filed a grievance through the DOCS Inmate Grievance Program ("IGP"), requesting that his denture be repaired. After two unfavorable decisions, Partee was advised by the CORC that, as his own "self adjustment to [the] denture rendered it irreparable[,]" he would either have to pay for a replacement denture at his own expense, or wait until April 12, 2006, when he would be eligible for a new set of dentures at DOCS's expense.
6/11/03 Central Office Review Committee Determination ("CORC Determination"), Ex. A to Compl. at p. 2.
7/3/06 Letter from Plaintiff to William J. Connolly ("Connolly Letter"), Ex. B. to Compl., at p. 1.
CORC Determination at p. 2.
In September of 2003, Partee was transferred to Attica Correctional Facility. While there, Partee underwent dental surgery on July 26, 2005, and some of his upper teeth were extracted "based on a dental diagnosis." Three months later, in November of 2005, Partee was scheduled to have impressions of his remaining teeth taken in preparation for new dentures. Before the impressions were taken, he was transferred to Gowanda Correctional Facility "because his classification had dropped." At Gowanda, Partee was placed on a six-month waiting list to have the impressions taken, but before his turn came, he was again transferred, this time to Fishkill Correctional Facility. On May 28, 2006, at Fishkill, Partee was seen by Dr. D'Silva, who advised Partee that there was "no bone to hold [his] teeth," and that no impression would be taken unless he allowed D'Silva to remove his remaining upper teeth. Partee refused to consent to the extraction of his teeth and remains without dentures. As a result, Partee has suffered pain and an "inability to engage in normal activities, such as eat properly [sic]."
See Compl. ¶ II(D).
Id.
See id.
Connolly Letter at 1.
See Compl. ¶ II(D).
Connolly Letter at 1.
See 6/29/06 Grievance, Ex. A to Compl., at 1 (requesting that dental work be completed).
Plaintiff's Traverse ¶ 6.
On June 29, 2006, Partee filed grievance #28014-06, through the IGP, against D'Silva, requesting that his "dential [sic] work be completed without the added opinion of Dr. D'Silda [sic]. . . ." After a hearing, the Inmate Grievance Review Committee ("IGRC") rendered a decision, denying Partee's grievance. The IGRC concluded that Partee's "requested action [was] beyond the purview of the IGRC." The cover sheet to the IGRC decision stated that if Partee wished to appeal the decision, he would have to do so by April 17, 2006 — a date which had passed three months earlier. Partee subsequently submitted typed letters to Lester N. Wright, Deputy Commissioner and Chief Medical Officer of DOCS, and William J. Connolly, then-Superintendent at Fishkill Correctional Facility, complaining about Dr. D'Silva's refusal to provide dentures unless Partee first agreed to allow the extraction of his upper teeth. The letter to Wright requested that Dr. D'Silva be directed to complete Partee's impressions. Partee's letter to Connolly accused Dr. D'Silva of racism and demanded that an investigation be conducted against her. Partee did not formally appeal the IGRC decision on grievance #28014-06. Instead, he commenced the instant action on October 4, 2006.
6/29/06 Grievance at 1.
See 7/11/06 Memorandum, Ex. A to Compl., at 4.
Id.
See id. at 3
See 6/28/06 Letter from Plaintiff to Lester N. Wright ("Wright Letter"), Ex. C to Compl., at 1-2.
See Connolly Letter at 1-3.
Wright Letter at 2.
See Connolly Letter at 2.
See Compl. ¶ IV(F)(3).
See id. at 7.
III. LEGAL STANDARDS
A. Motion to Dismiss
"Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief.' Specific facts are not necessary. . . ." When a complaint is attacked by a Rule 12(b)(6) motion to dismiss, the plaintiff need not provide "detailed factual allegations." To survive a motion to dismiss, it is enough that the complaint "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests."
Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007).
Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007).
Id.
When determining the sufficiency of plaintiff's claim for Rule 12(b)(6) purposes, consideration is limited to the factual allegations in plaintiff's complaint, which are accepted as true, as well as "documents relied on or incorporated by reference in the complaint." To survive dismissal, the allegations in the complaint must meet the standard of "plausibility." A complaint must "amplify a claim with some factual allegations . . . to render the claim plausible." In other words, the complaint must provide "the grounds upon which [the plaintiff's] claim rests through factual allegations sufficient 'to raise a right to relief above the speculative level.'" Thus, while a court must take the plaintiff's allegations as true, "the claim may still fail as a matter of law if it appears . . . that the plaintiff can prove no set of facts in support of its claim which would entitle [him] to relief, or if the claim is not legally feasible."
International Design Concepts, LLC v. Saks, Inc., 486 F. Supp. 2d 229, 235-36 (S.D.N.Y. 2007).
Bell Atlantic, 550 US ___, 127 S. Ct. at 1970.
Iqbal v. Hasty, No. 05 Civ. 5768, 2007 WL 1717803, at *11 (2d Cir. June 14, 2007) (holding that the plaintiff's complaint adequately alleged the personal involvement of the Attorney General because it was plausible that officials of the Department of Justice would be aware of policies concerning individuals arrested after 9/11).
ATSI Commc'ns v. Shaar Fund, Ltd., ___ F.3d ___, 2007 WL 1989336, at *5 (2d Cir. July 11, 2007) (quoting Bell Atlantic, 551 U.S. ___, 127 S. Ct. at 1965).
In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 457 F. Supp. 2d 455, 459 (S.D.N.Y. 2006) (citing Allaire Corp. v. Okumus, 433 F.3d 248, 250 (2d Cir. 2006)).
B. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act of 1995 (" PLRA") mandates exhaustion by prisoners of all administrative remedies before bringing an action regarding prison conditions. The PLRA's exhaustion requirement is mandatory. Failure to exhaust is an absolute bar to an inmate's action in federal court: "[section] 1997e(a) requires exhaustion of available administrative remedies before inmate-plaintiffs may bring their federal claims to court at all." Because the plain language of section 1997e(a) states "no action shall be brought," an inmate must have exhausted his claims at the time of the initial filing, given that "[s]ubsequent exhaustion after suit is filed . . . is insufficient." Moreover, the exhaustion of administrative remedies must be proper — that is, in compliance with a prison grievance program's deadlines and other critical procedural rules — in order to suffice. The United States Supreme Court has held that "the 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."
See 42 U.S.C. § 1997e(a), which provides that "[n]o action shall be brought with respect to prison conditions under § 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."
See Porter v. Nussle, 534 U.S. 516, 516 (2002). See also Booth v. Churner, 532 U.S. 732, 739 (2001).
Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001) (quotation marks and citation omitted).
Id.
See Woodford v. Ngo, 126 S. Ct. 2378, 2386-87 (2006).
Porter, 534 U.S. at 532.
Before bringing suit in federal court, an inmate must fully present his claim for internal resolution within the correctional facility and the DOCS. The DOCS grievance procedure is the IGP, which consists of three tiers. First, the inmate files a grievance with the Grievance Clerk, and the grievance will be decided by the IGRC. An adverse decision from the IGRC may be appealed to the Superintendent of the facility. Finally, adverse decisions at the Superintendent level can be appealed to the CORC. In order to survive a motion to dismiss, an inmate/plaintiff must have fully exhausted administrative remedies at all levels of appeal. Thus, an inmate/plaintiffs claim is not exhausted until he appeals to the CORC and receives a final decision regarding his grievance.
See Hemphill v. New York, 380 F.3d 680, 682 (2d Cir. 2004).
See id. § 701.5(c).
See id. § 701.5(d).
See Mendez v. Artuz, No. 01 Civ. 4157, 2002 WL 313796, at *2 (S.D.N.Y. Feb. 27, 2002) ("[T]he exhaustion requirement is not satisfied until the administrative process has reached a final result.").
The Second Circuit has, however, recognized that in certain situations a prisoner who fails to fully exhaust administrative remedies may survive a motion to dismiss. In Hemphill v. New York, the court announced a three-part inquiry "appropriate in cases where a prisoner plaintiff plausibly seeks to counter defendants' contention that the prisoner has failed to exhaust available administrative remedies as required by the PLRA." Examining the complaint, the court must ask:
See Hemphill, 380 F.3d at 687-90.
Id. at 686.
[ First,] whether administrative remedies were in fact 'available' to the prisoner. [ Second], . . . whether the defendants' own actions inhibiting the inmate's exhaustion of remedies may estop one or more of the defendants from raising the plaintiff's failure to exhaust as a defense. [ Third], [i]f the court finds that administrative remedies were available to the plaintiff, and that the defendants are not estopped and have not forfeited their non-exhaustion defense, but that the plaintiff nevertheless did not exhaust available remedies, the court should consider whether special circumstances have been plausibly alleged that justify the prisoner's failure to comply with administrative procedural requirements.
Id.
"What constitutes justification in the PLRA context 'must be determined by looking at the circumstances which might understandably lead usually uncounselled prisoners to fail to grieve in the normally required way.'" If the court determines that the inmate plaintiff was indeed justified in failing to exhaust — and exhaustion can no longer be achieved because administrative remedies are no longer available — this shortcoming is excused, and the suit may proceed.
Brownell v. Krom, 446 F.3d 305, 312 (2d Cir. 2006) (quoting Giano v. Goord, 380 F.3d 670, 675-76 (2d Cir. 2004)).
See Giano, 380 F.3d at 676.
C. Constitutional Standard: The Eighth Amendment
The Eighth Amendment prohibits the infliction of cruel and unusual punishment. This prohibition has been interpreted to "[impose] a duty on prison officials to ensure that inmates receive adequate medical care." To establish an Eighth Amendment violation arising out of the denial of medical care, a plaintiff must prove that defendants were deliberately indifferent to his serious medical needs. The deliberate indifference standard contains both an objective and subjective prong. Under the objective prong, an inmate must prove "that the deprivation alleged is 'objectively sufficiently serious' such that plaintiff was denied 'the minimal civilized measure of life's necessities.'" This includes "'not only deprivations of medical care that produce physical torture and lingering death, but also less serious denials which cause or perpetuate pain.'" The condition, however, must be "one of urgency that may produce death, degeneration, or extreme pain." The subjective prong requires a showing that defendant "possessed a 'sufficiently culpable state of mind.'" The level of culpability must be something "more than negligence, but less than conduct undertaken for the very purpose of causing harm." Thus, deliberate indifference will exist when an official "knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it."
Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006).
See Trammell v. Keane, 338 F.3d 155, 161-62 (2d Cir. 2003).
See Farmer v. Brennan, 511 U.S. 825, 834 (1994).
Trammell, 338 F.3d at 162 (quoting Farmer, 511 U.S. at 834).
Brock v. Wright, 315 F.3d 158, 163 (2d Cir. 2003) (quoting Todaro v. Ward, 565 F.2d 48, 52 (2d Cir. 1977)). Accord Brady v. Griffith, No. 95 Civ. 2364, 1998 WL 8146, at *3 (S.D.N.Y. Nov. 23, 1998).
Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994).
Trammell, 338 F.3d at 162 (quoting Farmer, 511 U.S. at 837).
Hathaway, 37 F.3d at 66.
Farmer, 511 U.S. at 847.
IV. DISCUSSION
The instant motion presents two issues: (1) whether Partee's admitted failure to exhaust administrative remedies can be justified, such that his federal claims should be permitted to proceed, and (2) if Partee's failure to exhaust can be justified, whether the allegations in the Complaint succeed in stating a viable claim.
A. Special Circumstances and the Failure to Exhaust
Partee pursued his administrative grievance against Dr. D'Silva through the IGRC level, but did not appeal the adverse decision to the CORC. Such a failure to exhaust typically results in dismissal of the complaint. Partee, however, has alleged "special circumstances" which may serve to excuse this deficiency. Specifically, Partee points out that the IGRC decision held that "[t]he grievant's requested action is beyond the purview of the IGRC." Partee argues that he reasonably understood this decision to mean that his dispute with Dr. D'Silva was not grievable and that "if the grievance personnel say it's not grievable, then Plaintiff should be protected from having a court say later that the Plaintiff should have grievanced [sic] it."
See Plaintiff's Memorandum of Law in Opposition to Defendant's Motion to Dismiss ("Pl. Opp.") at 3-4.
7/11/06 Memorandum at 4.
P1. Opp. at 3.
The circumstances surrounding Partee's failure to exhaust are similar to those found in Giano v. Goord. In that case, the Inmate/Plaintiff brought suit without first exhausting because he misread DOCS regulations and concluded that administrative redress was foreclosed as to one of his grievances when in fact it was not. When the defendants in Giano asserted failure to exhaust as a ground for dismissal, the Second Circuit held that although Giano had "read DOCS regulations incorrectly, his interpretation was hardly unreasonable." Noting that the standard by which a proffered justification should be evaluated is whether the circumstances "might understandably lead usually uncounselled prisoners to fail to grieve in the normally required way[,]" the court found Giano's failure to exhaust to be justified. Similarly, an uncounselled prisoner might understandably fail to properly appeal his grievance to the CORC level when the IGRC decision itself declares the grievance to be outside the "purview of the IGRC." Therefore, Partee's failure to fully exhaust his claims in grievance #28014-06 as required by the PLRA is justified.
See 380 F.3d at 674.
Id. at 679.
Id.
7/16/06 Memorandum at 4.
The next question, then, is whether administrative remedies are still available to Partee (in which case dismissal without prejudice is proper) or whether administrative remedies are unavailable to him (in which case the suit should continue on to the merits). The IGP rules mandate that "[i]f the grievant . . . wishes to appeal to the superintendent, he or she must complete and sign the appeal section on the IGRC response form . . . and submit it to the grievance clerk within seven calendar days after receipt of the IGRC's written response." As any appeal by Partee is now time-barred, he no longer has administrative remedies available.
See Giano, 380 F.3d at 679-80.
B. Deliberate Indifference and Failure to State a Claim
1. Dr. D'Silva
In order to state a claim for deliberate indifference, Partee must allege facts indicating that a substantial risk of serious harm would arise from the denial of the requested dental care — i.e. new dentures — and that the defendants perceived this risk and chose not to provide the requested treatment. Partee has satisfied the first requirement. As the Second Circuit held in Chance v. Armstrong, insufficient dental treatment may rise to the level of a Constitutional violation if it leads to extreme pain, deterioration of the teeth, and an inability to eat properly. Partee has alleged "pain, loss of teeth, discomfort, . . . infection and life threatening complications" as a result of Dr. D'Silva's refusal to provide dentures without first extracting Partee's teeth. Taking these allegations to be true, the negative consequences alleged are "sufficiently serious" to satisfy the objective component of the deliberate indifference standard.
143 F.3d 698, 703 (2d Cir. 1998).
Compl. ¶ III.
On the other hand, Partee has not satisfied the subjective component of the deliberate indifference standard. Partee's allegations, in fact, show that D'Silva perceived Partee's need for dentures and offered to take the impressions necessary to provide them. The allegation that D'Silva refused to provide the dentures unless she was allowed to extract Partee's upper teeth indicates not deliberate indifference to Partee's dental needs, but rather a medical determination that additional treatment was necessary.
See 6/29/06 Grievance at 1.
See id.
Partee's allegations, at bottom, reflect his opinion that the course of treatment prescribed by Dr. D'Silva was incorrect, and that the impressions should have been taken without first extracting Partee's teeth. The Second Circuit has long held that "'[t]he prisoner's right is to medical care — not the type or scope of medical care which he personally desires. A difference of opinion between a physician and a patient does not give rise to a constitutional right or sustain a claim under section 1983.'" Moreover, Partee's assertion that the dentists who saw him at Clinton Correctional Facility and Gowanda Correctional Facility did not reach the same conclusion as D'Silva also fails to transform D'Silva's actions into a constitutional violation. First, six months elapsed between the last time Partee was seen by a dentist and his visit to D'Silva, during which time Partee's dental condition could have changed. Second, even if D'Silva's diagnosis was incorrect, Partee has only stated a claim for negligence or medical malpractice, and "[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner." The proper venue for Partee's claim against D'Silva, therefore, is state court. Accordingly, the Complaint is dismissed as to defendant D'Silva.
U.S. ex rel. Hyde v. McGinnis, 429 F.2d 864, 868 (2d Cir. 1970) (quoting Coppinger v. Townsend, 398 F.2d 392, 394 (10th Cir. 1968)).
See Compl. ¶ II(D).
See id.
Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996).
2. Defendants Zwillinger, Connolly, and Wright
The Complaint makes no allegations showing deliberate indifference by defendants Zwillinger, Connolly, and Wright. The only allegation made as to these defendants is that they were "informed [of Partee's situation] and took no action whatsoever." In this Circuit, a "plaintiff must show that the defendant was personally involved in the alleged deprivation of his constitutional rights, since the doctrine of respondeat superior does not apply to § 1983 actions." Even if the allegations showed deliberate indifference on D'Silva's part, a prison official "cannot be held liable on the sole basis that he did not act in response to letters of protest. . . ." Moreover, as discussed above, Partee has failed to allege a constitutional violation. The Complaint is accordingly dismissed as to Defendants Zwillinger, Connolly, and Wright.
Compl. ¶ II(D).
Watson v. McGinnis, 964 F. Supp. 127 (S.D.N.Y. 1997) (compiling cases stating personal involvement requirement).
Smart v. Goord, 441 F. Supp. 2d 631, 643 (S.D.N.Y. 2006) (citing Greenwaldt v. Coughlin, No. 93 Civ. 6551, 1995 WL 232736, at *4 (S.D.N.Y. Apr. 19, 1995)).
3. Defendant Goord
Partee alleges that, in addition to "[taking] no action" after being informed of Partee's situation, former Commissioner Goord further violated Partee's constitutional rights by being "responsible for the policy that resulted in Plaintiff being up-rooted from one facility and transferred to another while undergoing medical procedures and each time being placed at the end of a new list for at least six months or more. . . ." First, Partee's deliberate indifference claim against Goord is dismissed for lack of personal involvement and the failure to allege a constitutional violation. Second, Partee's claim that the DOCS transfer policy violates his constitutional rights has not been fully grieved through the IGP. The "special circumstances" which served to justify Partee's failure to exhaust his deliberate indifference claim do not apply to this transfer claim, as no mention of unconstitutional transfer procedures was made in IGP Grievance #28014-06. Therefore, the Complaint must be dismissed as to defendant Goord for failure to exhaust administrative remedies before bringing suit as required by the PLRA.
Plaintiff's Traverse ¶ 6.
Plaintiff's Fourteenth Amendment claim, which consists entirely of an assertion of a right "to expect equal protection of the law to in include [sic] due process in prison administrative proceeding," must also be dismissed for failure to exhaust. Compl. ¶ V.
IV. CONCLUSION
For the reasons stated above, defendants' motion to dismiss is granted and this case is dismissed. The Clerk of the Court is directed to close this motion [Docket #10] and this case.
SO ORDERED: