Opinion
98-CV-6404CJS
October 4, 2002
For the plaintiff: Marvin Boston, Pro Se, Brockton, New York.
For the defendants: Gary M. Levine, Esq., Assistant New York State Attorney General, Rochester, New York.
DECISION AND ORDER
INTRODUCTION
This is an action in which the pro se plaintiff, a prison inmate, is suing employees of Attica Correctional Facility pursuant to 42 U.S.C. § 1983, claiming that they violated his Eighth Amendment rights by acting with deliberate indifference to his serious medical needs. The Court previously granted summary judgment as to all defendants except Corrections Officer Dennis Turton and Nurse Susan Nolder. Now before the Court is an application [#87] by Turton and Nolder, seeking leave to file a second motion for summary judgment, along with their motion for summary judgment [#90] itself, in which they seek dismissal of the action on the ground that plaintiff failed to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a). For the reasons that follow, both applications are granted, and this action is dismissed, without prejudice.
BACKGROUND
The facts of this entire case were set forth in the Court's prior Decision and Order [#86]. For purposes of this Decision and Order, which focuses only on defendants Turton and Nolder, it is sufficient to note the following facts. At all relevant times, plaintiff was an in inmate at Attica Correctional Facility, and suffered from a herniated disc in his back. On September 9, 1997, defendant Correction Officer Dennis Turton conducted a routine search of Boston's cell, and confiscated certain contraband, including plaintiff's back brace. (Complaint [#1], addendum, p. 1). Turton contends that the back brace was contraband because it contained metal, and because Boston did not produce a permit. (Turton Affidavit [#74], ¶ 7). Boston alleges that he told Turton that the brace was medically necessary, and that he had a permit for it, but Turton responded by saying, "I do not give a shit." (Id.). Boston also contends that the back braces issued by DOCS do not contain metal, but rather, flexible plastic. (Declaration in Opposition [#84], p. 10). On October 30, 1997, plaintiff wrote a letter to Frank McCray, Deputy Superintendent at Attica, in which he complained about Corrections Officer Turton confiscating his back brace. However, there is no indication that plaintiff ever filed a formal grievance with the Inmate Grievance Committee regarding Turton's confiscation of the back brace.
As for Nurse Nolder, plaintiff contends that on October 10, 1997, he complained of back pain, and she denied him emergency sick call and made him wait until the following day to see a doctor. On November 3, 1997, plaintiff further alleges that Nolder made a false entry in his medical chart, indicating that he failed to keep a doctor's appointment because he was in the prison yard, when, according to plaintif, he actually was confined to his bed because of back pain. That same day, Nolder also allegedly told plaintiff that he was "too young to have back problems," and that there was "nothing wrong with him." On November 5, 1997, plaintiff wrote an inmate grievance (Grievance #36268-97) in which he complained about Nolder's comment that there was "nothing wrong with him." In the grievance, in addition to complaining about Nolder's comment, plaintiff complained generally about Nolder and Dr. Laskowski, and their alleged failure to provide proper medical care. Plaintiff also requested that he be "seen or admitted to [an] outside hospital for surgery." (November 5, 1997 Inmate Grievance). On December 16, 1997, plaintiff wrote to the supervisor of the Inmate Grievance Program, indicating that he had received a response to his November 5, 1997 Grievance, and that he wished to appeal the Grievance Committee's decision to the Superintendent of Attica.
However, there is nothing in the record to indicate that plaintiff actually appealed the Inmate Grievance Committee's decision to either the facility Superintendent or to the Central Office Review Committee ("CORC"). On the contrary, the record indicates that plaintiff did not appeal. For example, during discovery, plaintiff demanded that defendants produce copies of all grievances and complaints he had filed. The documents which defendants produced contain no appeal for Grievance No. 36268-97, and plaintiff never claimed that defendants' response was incomplete. Moreover, in his cross-motion for summary judgment [#79], plaintiff recited the history of his complaints against the defendants. There, although he acknowledged receiving the Inmate Grievance Resolution Committee's response to Grievance No. 36268-97, he did not indicate that he appealed that determination. Instead, he indicates only that he "continued to suffer and complain." (Cross-motion for Summary Judgment [#79], p. 7).
In contrast, plaintiff did recite, and the record does reflect, that he exhausted his administrative remedies with regard to a different grievance, Grievance No. A-36772-98, which he filed when the Department of Correctional Services denied his request for back surgery.
As to Nolder, plaintiff also contends that she gave him a back brace that was too small; that she failed to have a doctor see him after he complained of a slipped disc on December 18, 1997; that during the week of December 23, 1997, she did not provide him with his pain medication; and, that on January 5, 1998, she discontinued his prescription for pain medication. However, there is no indication that plaintiff ever filed inmate grievances concerning these incidents.
Plaintiff commenced this action on September 25, 1998. Defendants filed their Answer to plaintiff's Complaint on January 29, 1999. Thereafter, the parties conducted discovery. On March 3, 2000, defendants filed their first motion for summary judgment. By Decision and Order dated October 9, 2001, this Court granted summary judgment as to all defendants except Turton and Nolder. That same day, a new attorney from the Office of the New York State Attorney General appeared as attorney of record for the defendants. On October 29, 2001, the new attorney filed a motion [#87] for leave to file a second dispositive motion, on the ground of failure to exhaust administrative remedies, noting, "As I did not make the original summary judgment motion I cannot address the reason why this issue was not included in the original summary judgment motion." The Court then set a briefing schedule. Defendants then filed their second motion for summary judgment [#90] on November 28, 2001. On December 4, 2001, plaintiff filed a "Declaration in Opposition to Defendants' Motion for Dismissal" [#94] and a "Statement Pursuant to Local Rule 56" [#95], indicating, inter alia, that he exhausted his administrative remedies. However, although plaintiff states that he filed a grievance against Nolder and wrote various letters complaining about her, he does not claim to have appealed the grievance to either the facility superintendent or to CORC.
On December 6, 2001, the Court mailed a notice to plaintiff, pursuant to Irby v. New York City Transit Authority, 262 F.3d 412 (2d Cir. 2001).
Moreover, as to Turton, plaintiff does not claim to have filed a grievance concerning the confiscation of his back brace.
ANALYSIS
42 U.S.C. § 1997e(a) provides 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." It is well settled that,
[i]n New York State, those remedies consist of a three-step review process. Once a grievance is submitted to the inmate grievance resolution committee ("IGRC"), (1) the grievance is investigated and reviewed by the IGRC, which is comprised of inmates and DOCS employees; (2) if appealed, the superintendent of the facility reviews the IGRC's determination; and (3) if the superintendent's decision is appealed, the Central Office Review Committee ("CORC") makes the final administrative determination. Only upon exhaustion of these three levels of review may a prisoner seek relief pursuant to § 1983 in federal court.
Reyes v. Punzal, 206 F. Supp.2d 431, 432 (W.D.N.Y. 2002) (citations omitted). Where a plaintiff has failed to comply with 42 U.S.C. § 1997e(a) prior to commencing his lawsuit, the district court should dismiss the action without prejudice. Neal v. Goord, 267 F.3d 116, 121-23 (2d Cir. 2001), overruled in part on other grounds, Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983 (2002).
In the instant case, the Court finds that plaintiff did not exhaust his administrative remedies as to the acts allegedly committed by Turton or Nolder. More specifically, the Court finds that plaintiff never filed an inmate grievance against Turton, and that he never appealed the denial of his inmate grievance against Nolder. As to Nolder, the Court further finds that, even if plaintiff had exhausted his remedies as to Grievance No. 36268-97, that such exhaustion would only have pertained to Nolder's alleged denials of treatment on October 10, 1997 and November 3, 1997. Plaintiff did not file grievances regarding Nolder's subsequent denials of treatment.
However, the Court's inquiry does not end there. Rule 8(c) of the Federal Rules of Civil Procedure states that a party shall set forth affirmative defenses in a responsive pleading. The "[f]ailure to plead an affirmative defense in the answer results in the waiver of that defense and its exclusion from the case." U.S. For and on Behalf of Maritime Admin. v. Continental Illinois Nat. Bank and Trust Co. of Chicago, 889 F.2d 1248, 1253 (2d Cir. 1989) (citations and internal quotations omitted). The Second Circuit Court of Appeals has characterized the failure to comply with 42 U.S.C. § 1997e(a) as an affirmative defense. See, Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir. 1999) ("[A] defendant in a prisoner § 1983 suit may also assert as an affirmative defense the plaintiff's failure to comply with the PLRA's requirements."); but see, Bastek v. Federal Crop Ins. Corp., 145 F.3d 90, 94 (2d Cir. 1998) (Discussing the difference between statutory exhaustion requirements and common-law exhaustion requirements, and noting, as to the former, "if the statute at issue explicitly mandates exhaustion as a prerequisite to judicial review, it must be enforced."). Here, plaintiff contends that "[d]efendants had [an adequate] amount of time to bring about such . . . issues and failed to do so timely." (Plaintiff's Statement Pursuant to Local Rule 56 [#95], pp. 1-2). The Court interprets plaintiff's submission as raising the argument that defendants' have waived or forfeited the affirmative defense by failing to raise it sooner.
This argument has merit, since it is clear that defendants failed to plead this affirmative defense in their answer, or to raise it in their initial motion for summary judgment. However, for the reasons that follow, the Court finds that defendants did not waive or forfeit the affirmative defense.
It is clear that the Court has the discretion to treat defendants' motion for summary judgment as a motion to amend their answer, to include the affirmative defense. Block v. First Blood Assocs., 988 F.2d 344, 350-51 (2d Cir. 1993); Monahan v. New York City Dept. of Corrections, 214 F.3d 275, 283 (2d Cir. 2000), cert. denied, 531 U.S. 1035 (2000). In that regard, motions to amend pleadings are governed by Rule 15(a) of the Federal Rules of Civil Procedure, which provides that leave to amend "shall be freely given when justice so requires." Block v. First Blood Assocs., 988 F.2d at 350. In this Circuit, leave to amend will be granted unless the nonmovant can demonstrate prejudice or bad faith. Id. Prejudice may exist where amendment would "(i) require the opponent to expend significant additional resources to conduct discovery and prepare for trial; (ii) significantly delay the resolution of the dispute; or (iii) prevent the plaintiff from bringing a timely action in another jurisdiction." Id.
Applying the foregoing principles, the Court finds that there is no evidence that defendants acted with bad faith by failing to raise the affirmative defense sooner. Rather, defendants sought leave to raise the affirmative defense shortly after the Second Circuit decided Neal v. Goord on October 4, 2001. In Neal, the Circuit Court of Appeals held that inmates complaining about medical treatment must exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a). Neal v. Goord, 267 F.3d at 119-21.
Prior to the Circuit Court's decision, some district courts were already requiring exhaustion of medical indifference claims. See, e.g., Vasquez v. Artuz, No. 97 Civ. 8427(AJP), 1999 WL 440631 at *5 (S.D.N.Y. June 28, 1999) ("District Court decisions in this District hold that § 1997e(a)'s exhaustion requirement applies to claims involving prison conditions, including medical deprivation claims.") (citations omitted).
As for the question of prejudice, plaintiff has not demonstrated that he would suffer any actual prejudice, as that term is defined above. See, Monahan v. New York City Dept. of Corrections, 214 F.3d at 284 ("[T]he fact that one party has spent time and money preparing for trial will usually not be deemed prejudice sufficient to warrant a deviation from the rule broadly allowing amendment to pleadings."); see also, Block v. First Blood Assocs., 988 F.2d at 350 ("Mere delay . . . absent a showing of bad faith or undue prejudice, does not provide a basis for a district court to deny the right to amend.") (citation omitted). Therefore, defendants' answer is amended to include the affirmative defense of failure to exhaust administrative remedies. Moreover, the Court will dismiss the action without prejudice, since plaintiff did not exhaust his administrative remedies before commencing this lawsuit, as required by 42 U.S.C. § 1997e(a).
CONCLUSION
Defendants' motion for leave to file a second dispositive motion [#87] is granted. Defendants' motion for summary judgment [#90] is granted only to the extent that this action is dismissed, without prejudice to plaintiff filing a new action once he has exhausted his administrative remedies.
SO ORDERED