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finding that allegations in grievance were narrower than allegations civil rights complaint, and therefore inmate's medical claim should be limited to what is in the grievance
Summary of this case from Gssime v. BurgeOpinion
No. 02-CV-6430 CJS (B).
August 17, 2004
Jake Harper, Esq., New York, New York, for Plaintiff.
Gary M. Levine, Assistant Attorney General of Counsel, NYS Office of the Attorney General, Rochester, New York, for Defendants.
DECISION AND ORDER
INTRODUCTION
Pursuant to 42 U.S.C. § 1983, the plaintiff, a former inmate of the Elmira Correctional Facility ("Elmira"), is suing the following current or former employees of the New York State Department of Correctional Services ("DOCS"): Floyd Bennett, Superintendent of Elmira ("Bennett"); Raymond Doane, the Deputy of Security ("Doane"); Sergeant Alan Erickson ("Erickson"); the unidentified Director of Health Services Systems ("the Health Director"); Herman Fowler, N.P. ("Fowler"); Cheng Yin, M.D. ("Yin"); Diane Holton, R.N. ("Holton"); Lieutenant William Hughes ("Hughes"); Sergeant S. Post ("Post"); Corrections Officers Steven Nowtaczyk ("Nowtaczyk"), L. Yost ("Yost"), David Berbary ("Berbary"), Joel Evans ("Evans"), Alan Tweedy ("Tweedy"), and Mark Taylor ("Taylor"); as well as some twenty additional Elmira employees who are unidentified. Now before the Court is defendants' motion for summary judgment seeking dismissal of plaintiff's complaint for failure to exhaust administrative remedies as required by 42 U.S.C. § 1997e(a). For the reasons stated below, the application is granted in part and denied in part.
Where there are discrepancies in the record for the first names of Erickson, Fowler, and Yin, the Court relies upon the names given in defendants' answers.
BACKGROUND
The Court views the evidentiary proof in admissible form in the light most favorable to the plaintiff, as non-moving party. As of May 2001, plaintiff was an inmate at Elmira, and defendants were employed by DOCS at Elmira. On May 5, 2001, plaintiff wrote to defendant Doane that other inmates had warned plaintiff that inmate Stephen Fox ("Fox") was "out to get him." Plaintiff indicated that he previously had problems with Fox when they were both housed at another facility, and that Fox was known to be violent. He further stated that he had alerted defendant Erickson of the situation, but Erickson seemed unconcerned. Doane did not respond to the letter.
On May 16, 2001, during the afternoon mandatory meal, Fox yelled his intentions to harm plaintiff. Following the meal, plaintiff informed Erickson about the threats. Erickson told plaintiff that he would look into it, and instructed plaintiff to continue with his assigned program. Later that day, during plaintiff's GED class, Fox attacked plaintiff. He struck plaintiff repeatedly, smashed plaintiff's head against the floor and wall, and tried to jam a pen into plaintiff's right eye. Plaintiff suffered a bloody nose, a lacerated lower lip, and swelling on the entire right side of his face.
Plaintiff was treated at the prison infirmary by defendant Fowler, at which time x-rays and photographs of plaintiff's injuries were taken. Defendant Yin reviewed plaintiff's x-rays and found multiple fractures. Infirmary staff, including defendant Holton, treated plaintiff with Tylenol and codeine. On May 17, 2001, DOCS granted plaintiff a referral for an outside medical consultation to take place May 21, 2001. In the meantime, the infirmary staff discharged plaintiff on May 18, 2001.
Plaintiff's Second Amended Complaint [#19] states: "On 5.18.02, only two days after plaintiff sustained [injuries] . . . plaintiff was discharged from his cell." The Court noted in its decision of June 25, 2003 [#10], that it understood an identical statement in the original complaint to be a typographical error, and adjusted the year to conform to the rest of the complaint (at 3 n. 2). Despite plaintiff's failure to correct the error in the Second Amended Complaint, the Court persists in believing that "two days after" Fox assaulted plaintiff the year was still 2001.
On May 21, 2001, doctors at the State University of New York Hospital in Syracuse examined plaintiff and found:
A. Multiple fractures of the right orbit and right maxillary sinus.
B. Fracture of the ramus of the mandible on the right.
C. Fracture of the right nasal bone.
D. The right anterior rectus muscle is slightly swollen but not displaced inferiorly.
E. Muscosal thickening of the frontal sinuses.
Plaintiff claims that these injuries required immediate evaluation and treatment, and that he should not have had to wait before being treated by the outside specialist. He also maintains that defendants have prevented him from being seen by an ophthalmologist. He now claims to suffer from impaired vision, abnormal breathing, sinus and nerve damage, loosened teeth, migraine headaches, and Post Traumatic Stress Syndrome.
The record does not indicate what, if any, change in treatment resulted from the evaluation of the outside specialist on May 21, 2001.
Plaintiff was moved to Upstate Correctional Facility ("Upstate") on December 5, 2001. On August 17, 2002, just days after commencing the instant action, plaintiff was transferred back to Elmira. Upon his return, plaintiff was "locked up" for 72 hours by Erickson in order to conduct an "investigation." Approximately one week later, Erickson again "locked up" plaintiff for 72 hours for the same reason. Plaintiff alleges that both incidents were pretextual. In the months that followed, Erickson more than once directed staff to search plaintiff's cell, and was present when unidentified officers threw plaintiff against the wall. Plaintiff also endured a strip search, sexual harassment by defendant Tweedy, and mail tampering by unidentified Elmira employees. Furthermore, defendant Evans temporarily cut off the electricity in his cell.
Plaintiff does not explain what he means by this phrase, see Second Am. Compl. [#19], ¶ 29, and since plaintiff was already incarcerated, the Court does not find plaintiff's meaning self-explanatory.
Plaintiff does not indicate which officers conducted the strip search. Presumably they are among the John Doe defendants.
The Second Amended Complaint [#19] also describes an incident in which defendant Berbary ordered plaintiff not to "skip" seats in the mess hall (¶ 40). Plaintiff, who could not pull out one seat because it was stuck, gave the Officer an insolent reply for which he was disciplined. It is unclear how this apparently routine case of inmate disobedience supports plaintiff's retaliation claim, but plaintiff presumably believes the Officer singled him out for harsh treatment because of the instant action.
On November 5, 2002, Erickson compelled plaintiff to submit a "suspicion urine sample." On December 20, 2002, defendant Nowtaczyk told plaintiff that he was going to use a tainted urine sample to frame plaintiff. On August 5, 2003, plaintiff was again required to submit a urine sample to defendant Yost. This sample tested positive for opiates, indicative that heroin was in his system. He was charged with drug use, but was not given the required 24 hours notice to prepare his defense. At the disciplinary hearing, he pleaded guilty and was sentenced to four years loss of programs and two years in the Special Housing Unit ("SHU"). Nowtaczyk came to his cell on August 13, 2003, to say, "See what happens when you mess with us. I told you I would get you for a positive heroin. I always keep my promises." Second Am. Compl. [#19], ¶ 52. On August 19, 2003, plaintiff appealed the tier hearing conviction on the grounds that he was given insufficient notice of the charge, and that the hearing officer imposed an excessive penalty. Plaintiff also claimed that Nowtaczyk had framed him, and in that regard plaintiff maintained that he had no history of heroin use.
This urinalysis apparently did not reveal any drug use. See Second Am. Compl. [#19], ¶¶ 43-44.
Plaintiff also claims that Elmira staff has retaliated against him by sabotaging his efforts to pursue this action. On December 12, 2002, defendants Tweedy and Yost removed plaintiff's papers from an envelope marked "Legal Papers," threw them on the floor, and spilled a bucket of water on them. Papers relating to the instant action were thus damaged to the point of being unusable. In March, 2003, plaintiff attempted to send a copy of a grievance relating to the instant action to his attorney. Though he claims that he handed the grievance to an unidentified corrections officer for mailing, his attorney never received it. Finally, on August 13, 2003, personal property that plaintiff had packed in preparation for his transfer to SHU disappeared. Though some of this property was returned five days later, various items were missing, including written inquiries about DOCS officials' failure to respond to his grievances.
Though plaintiff makes this claim in his Second Amended Complaint [#19], ¶ 36, the grievance he filed concerning this event (#24472-03) does not claim officers intentionally destroyed his papers: "[t]hey took all my legal work and personal mail out of the envelopes not replacing them back in the envelopes just throwing them in a big pile. Most of it got wet and destroyed." Graubard Decl. [#38], Ex. E.
Plaintiff makes this last allegation in his unsworn Second Amended Complaint [#19], ¶ 54, and reiterates it in his Rule 56 Statement [#42]. He does not include it in any sworn affidavit, or in any other form which would be admissible as evidence for the purposes of the instant motion. Moreover, he nowhere indicates the precise nature of the inquiries, to whom he may have sent them, how frequently, or on what date(s). He states that he received no responses. Id.
PROCEDURAL HISTORY
Plaintiff commenced this action by filing a Complaint on August 13, 2002 [#1]. He submitted two federal claims pursuant to 42 U.S.C. § 1983 for violation of his 8th Amendment rights: (1) that defendants Doane and Erickson failed to protect him from Fox; and, (2) that defendants Yin, Fowler, and Holton were deliberately indifferent to his medical needs. Additionally, plaintiff asserted New York State tort law claims for negligence and medical malpractice. By Order and Decision of this Court, filed June 25, 2003 [#10], plaintiff's state law claims were dismissed. Defendants' motion to dismiss the federal claims for lack of subject matter jurisdiction was denied, as was their motion to dismiss for failure to state a claim with respect to defendant Holton.On September 22, 2003, plaintiff filed an Amended Complaint, in which he added a new cause of action for unlawful retaliation. Because plaintiff inadvertently retained the dismissed state law claims in the amended complaint, he filed a Second Amended Complaint [#19] on December 1, 2003, to correct that mistake. Defendants brought the instant motion for summary judgment on May 14, 2004, arguing that plaintiff has not exhausted administrative remedies for his "failure to protect" and his retaliation claims. They further argue that the single grievance plaintiff exhausted for deliberate indifference to serious medical needs is more narrow than the medical claims in the instant action.
Plaintiff filed the undisputedly exhausted grievance on September 29, 2002, while still at Elmira. In it plaintiff complained of continuing medical problems stemming from the assault by Fox, and alleged that prison officials were denying his requests to see an ENT specialist, an ophthalmologist, and dentist. When the Inmate Grievance Resolution Committee ("IGRC") denied his requests, plaintiff appealed the denial to the Superintendent and then to the Central Office Review Committee ("CORC"). Both levels of appeal sustained the IGRC decision.
Plaintiff also undisputedly filed three grievances in December of 2002 which arguably raise claims of official retaliation: #24548-03, dated December 25, 2002, complaining that defendant Evans maliciously cut off the electricity in his cell; #24472-03, filed on December 20, 2002, complaining of sexual harassment, mistreatment of legal materials, and threats to frame plaintiff with a tainted urine sample; and #24474-03, filed on December 26, 2002, complaining of harassment by Erickson and other staff in retaliation for plaintiff's filing the instant action. There is no evidence that plaintiff appealed the IGRC decisions for any of these grievances.
In response to defendants' application, plaintiff's counsel submitted a memorandum of law and a Rule 56 statement indicating that plaintiff filed additional grievances. The first of these, dated May 28, 2001, complained of the deliberate indifference of Erickson and Bennett that allowed inmate Fox to assault plaintiff. Although a copy of such a grievance is attached to the memorandum of law, the copy does not include a grievance number or any other authentication. Pl.'s Mem. of Law in Opp'n to Defs.' Mot. for Summ. J. ("Pl.'s Mem. in Opp'n") [#42], Ex. A. Defendants dispute that plaintiff ever filed this grievance, and plaintiff has not submitted an affidavit or other admissible evidence attesting to his version of events.
Plaintiff's counsel also claims that plaintiff filed four grievances relating to official retaliation in August of 2003: one on August 6 describing how Yost and Nowtaczyk framed him for drug use; one on August 13 describing how Nowtaczyk boasted of his success after plaintiff tested positive for opiates; and two on August 20 relating to his missing property. Pl.'s Mem. in Opp'n [#42], Ex. B. As with the May 28, 2001 grievance, plaintiff's counsel has submitted copies bearing no authenticating information and has not offered any admissible evidence that plaintiff ever filed these grievances. Instead, he asserts that plaintiff wrote inquiries about the lack of response to his grievances and that copies of these inquiries were among the items of personal property that were never returned to plaintiff after their disappearance on August 13, 2003. Defendants have no record of these grievances.
See, supra n. 8.
On September 16, 2003, after plaintiff had been transferred to Midstate Correctional Facility ("Midstate"), he filed a grievance (# MS-13439-03) about the lack of response to his May 28, 2001 grievance, and to those he claims to have filed in August 2001. Pl.'s Mem. in Opp'n [#42], Ex. C. The IGRC denied this grievance on October 10 because of insufficient evidence. Plaintiff signed the statement on the IGRC's decision indicating that he wished to appeal the decision to the Superintendent, but the record does not attest to any further developments respecting this grievance.
In this September 16, 2003 grievance, plaintiff also refers to a grievance submitted on August 19, 2003. Plaintiff has not submitted any copy of this grievance nor indicated its contents.
LEGAL STANDARDS
A. Summary Judgment
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996) ( citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)), cert denied, 517 U.S. 1190 (1996).
The burden then shifts to the non-moving party to demonstrate "specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To do this, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249. Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993). The parties may only carry their respective burdens by producing evidentiary proof in admissible form. FED. R. CIV. P. 56(e). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962).
B. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act (" PLRA"), 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). If a plaintiff has failed to comply with 42 U.S.C. § 1997e(a) prior to commencing a 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 (2002); but see, Berry v. Kerik, 366 F.3d 85, 88 (2d Cir. 2004) (finding dismissal with prejudice appropriate where "exhaustion was required but administrative remedies have become unavailable after the prisoner had ample opportunity to use them and no special circumstances justified failure to exhaust").
The PLRA's exhaustion requirement is not jurisdictional, but is an affirmative defense. Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004). This affirmative defense may be waived. See Davis v. New York, 316 F.3d 93, 101 (2d Cir. 2002). Moreover, defendants may in some circumstances be estopped from raising the affirmative defense. Ziemba, 366 F.3d at 163; see also, Arnold v. Goetz, 245 F.Supp.2d 527, 537 (S.D.N.Y. 2003) (holding as a "general principle that an inmate's technical failure to exhaust administrative remedies before commencing a § 1983 action may be excused where officials prevented him from utilizing a grievance procedure.") (citations omitted). As the Court noted in Arnold, "prison officials cannot have it both ways — they cannot obstruct an inmate's pursuit of administrative exhaustion on the one hand and then claim the inmate did not properly exhaust these remedies on the other." Id.
ANALYSIS
Defendants argue that plaintiff has failed to exhaust his administrative remedies for both his "failure to protect" claim and his retaliation claims. Further, although they concede that plaintiff exhausted administrative remedies with respect to a medical grievance, they argue that that grievance was narrower than the medical care claim in the instant action and that, consequently, his cause of action in this lawsuit should be confined to what was specifically grieved. Additionally, they argue that, because plaintiff has not exhausted all of his claims, the entire action should be dismissed. Plaintiff responds that he should be excused from technically exhausting all his claims because prison officials thwarted his efforts to do so.A. Exhaustion for Claim of Failure to Protect
Defendants assert that plaintiff did not file any grievance claiming Doane and Erickson failed to protect him from Fox. Graubard Decl. [#38], ¶ 4. They further argue that, even if he did, he never appealed to CORC. Eagen Decl. [#37], ¶ 4. Plaintiff, on the other hand, states that, given the difficulty he had in mailing a copy of the May 28 grievance to his attorney and the absence of that grievance from DOCS records, a jury could reasonably conclude that it "was intercepted or scuttled by prison officials." Pl.'s Mem. in Opp'n [#42], ¶ 19. According to plaintiff, the failure of prison officials to respond to this grievance absolved him of his obligation to appeal. Id., ¶ 25.
Plaintiff's contention that prison officials actively prevented him from exhausting his grievance is unsupported by any evidence. In order for a jury to conclude that the May 28 grievance "was intercepted or scuttled," plaintiff would first have to present some proof that he actually filed such a grievance. He has not done this. Though he presents what purports to be a copy of the May 28 grievance, plaintiff has not offered an affidavit authenticating the copy and asserting that he did file the grievance. The statement of plaintiff's attorney cannot suffice since he has no personal knowledge of the grievance. See FED. R. CIV. P. 56(e). Plaintiff, therefore, raises no factual issue as to his grieving the failure to protect claim. See Id.; W.D.N.Y. LOC. R. CIV. P. 56.1(c), (d).
Even if plaintiff had established that he did file a grievance concerning this matter on May 28, 2001, he would still fall short of the exhaustion requirement since, he did not appeal that grievance. Plaintiff is simply incorrect when he argues that the failure of prison officials to respond to a grievance eliminates further obligations on plaintiff's part. See 7 N.Y.C.R.R. § 701.8 (2004); Lashley v. Artuz, No. 01-Civ.-11542(SAS), 2004 WL 1192090, 2004 U.S. Dist. LEXIS 9707 (S.D.N.Y. May 27, 2004) (noting that "[e]ven where an inmate recieves no response to his initial level grievance, he is still required to file an appeal in order to satisfy the exhaustion requirement); Arce v. Keane, No. 01-Civ. 2648(BSJ), 2004 WL 439428, 2004 U.S. Dist. LEXIS 3698 (S.D.N.Y. Mar. 9, 2004) (finding "[a]n inmate's failure to appeal a grievance is not excused because he has received no response to his initial grievance.").
Plaintiff cites various cases from other circuits for the proposition that lack of official response to a grievance satisfies the PLRA's exhaustion requirement. The PLRA, however, requires the exhaustion of available remedies. Without inquiring into the regulations in place in other states, it is clear, as noted, that New York State makes appeal available even in the absence of official response to the original grievance.
The Court further notes that the grievance of September 16, 2003, cannot possibly aid plaintiff with exhaustion of his failure to protect claim. The PLRA requires that inmates exhaust administrative remedies before commencing a suit in federal court. Neal v. Goord, 267 F.3d 166, 117-18 (2d Cir. 2001). Plaintiff brought his failure to protect claim when he originally filed this action on August 13, 2002. Any steps he may have taken after that date are irrelevant in determining his compliance or non-compliance with the PLRA. Since plaintiff has not exhausted this claim, it is dismissed.
B. Exhaustion of Retaliation Claim
The same problems plague plaintiff's argument for exhaustion of his retaliation claims. With respect to the grievances allegedly filed in August of 2003, plaintiff has not offered an affidavit authenticating the copies he produced and asserting that he did in fact file the grievances. Again, the statement of plaintiff's attorney cannot suffice, since he has no personal knowledge of the grievances. The grievances plaintiff allegedly filed in August of 2003 are thus not admissible. Moreover, plaintiff could not establish exhaustion even if those grievances were admissible. In an attempt to exhaust these grievances, plaintiff filed another grievance on September 16, 2003, inquiring about the lack of response from prison officials. However, plaintiff waited only six days before including the retaliation claims in his Amended Complaint filed on September 22, 2003. This six day period did not even give the IGRC sufficient time to respond. It certainly did not allow for review by the Superintendent and CORC. Plaintiff indicates that he did request appeal of the IGRC decision. Pl.'s Mem. in Opp'n [#42], ¶ 20. However, he did so only on October 15, 2003 and, again, efforts to exhaust that are undertaken after filing in federal court cannot satisfy the PLRA.
As to the three grievances filed in December of 2002, plaintiff offers no evidence that he appealed any of them to the Superintendent, let alone to CORC. Indeed he appears to concede that these grievances are unexhausted. See Pl.'s Mem. in Opp'n [#42], ¶¶ 26-27. Because plaintiff has not exhausted administrative remedies for any grievance relating to his retaliation claims, those claims are also dismissed.
C. Exhaustion of Medical Care Claim
The Court now turns to plaintiff's claim relating to the medical care he received in the wake of the assault by Fox. There is no dispute that plaintiff exhausted administrative remedies with respect to a grievance dated September 29, 2002 (#24091-02). At issue is whether the scope of plaintiff's federal claim exceeds that of the grievance and, if so, whether plaintiff's federal claim must be strictly limited by the grievance for which he exhausted administrative remedies. Plaintiff argues that he grieved the "ongoing indifference" to medical problems, and that his grievance "makes express reference to the conditions plaintiff complains of inadequate treatment for as stemming from the 5.16.01 assault by inmate Fox." Pl.'s Mem. in Opp'n [#42], ¶ 29.
The Court, however, agrees with defendants that the grievance is narrower than the allegations in the Second Amended Complaint, and, "therefore, the medical claim should be limited to what is in the grievance." Defs.' Mem. of Law [#40], at 5. In the September 29 grievance, plaintiff describes the problem as follows:
I was seriously injured on 5-16-01 in school building. I've filed several sick call request[s] about my on going medical problems resulting from the assault I endured on 5-16-01. I've been having problems breathing threw [sic] my nose. My sinus has been dripping in back of my throat. I have nerve damage to right eye and been getting severe headaches[.] teeth still loose[.] I am being denied to see [sic] medical specialists ENT specialists. Graubard Decl. [#38], Ex. C. Consequently, he requests: "that [he] be seen by ENT specialist[,] eye doctor, dentist, and get the appropriate medical treatment [he] need[s] for [his] ongoing medical problem." Id. Thus, with respect to plaintiff's allegations of deliberate indifference to serious ongoing medical needs, the September 29 grievance did fulfill the PLRA's purpose of "afford[ing] prison officials time and opportunity to address complaints prior to judicial review." Baskerville v. Blot, 224 F.Supp.2d 723, 730 (S.D.N.Y. 2002) (citation omitted). However, because the assault by Fox occurred more than sixteen months earlier, the grievance cannot reasonably be interpreted as a complaint that "he was not transported for evaluation and treatment by a qualified care provider until four days after being assaulted." Second Am. Compl. [#19], ¶ 22. That specific claim is unexhausted. Therefore, to the extend that plaintiff's medical care claim relates to a four day delay in access to an outside specialist, it is dismissed.
D. Total Exhaustion
Having found that plaintiff's Second Amended Complaint contains both exhausted and unexhausted claims, the Court must now address defendants' argument that the PLRA requires total exhaustion. This is an unsettled issue currently under consideration by the Second Circuit Court of Appeals. See, Ortiz v. McBride, 323 F.3d 191, 195 (2d Cir. 2003). Some district courts have applied a total exhaustion rule, requiring the dismissal of the entire action where less than all claims have been exhausted, see, e.g., Williams v. Cooney, No. 01 CV 4623 (RCC), 2004 U.S. Dist. LEXIS 3648, 2004 WL 434600 at *3 (S.D.N.Y. Mar. 8, 2004), while others have merely dismissed the unexhausted claims without prejudice and allowed the exhausted claims to go forward, see, Dimick v. Baruffo, No. 02 Civ. 2151 (LMM), 2003 U.S. Dist. LEXIS 2865, 2003 WL 660826 at *5 (S.D.N.Y. Feb. 28, 2003).
In this case, the Court will dismiss the unexhausted claims, but not the entire action. The Court agrees with Judge Larimer's reasoning in Rosales v. Bennett, 297 F. Supp.2d 637, 640 (W.D.N.Y. 2004), that there is "little reason" to dismiss the exhausted claims which are factually distinct from the unexhausted claims. Should the Second Circuit determine that the PLRA in fact requires total exhaustion, it would be well within the power of this Court to reconsider its decision.
CONCLUSION
Accordingly, defendants' application for summary judgment [#36] is granted in part and denied in part. It is granted to the extent that plaintiff's claims for failure to protect and for retaliation, along with his claim for deliberate indifference to serious medical needs in delaying plaintiff's access to outside medical consultation for four days, are dismissed without prejudice. However, defendants' application to dismiss plaintiff's complaint in its entirety is denied.
Defendants have not requested that any dismissal be with prejudice. In that regard, they have not argued, "that administrative remedies have become unavailable after the prisoner had ample opportunity to use them and no special circumstances justified failure to exhaust." Berry, 366 F.3d at 88; see also, Rodriguez v. Westchester County Jail Corr. Dep't, 372 F.3d 485, 487-88 (2d Cir. 2004).
SO ORDERED.