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holding allegations of facial swelling, contusions in both ears and on his forehead, abrasions on his shoulder, a one millimeter laceration in his right eye, blurred vision, headaches, dizziness and ringing in his ears, which continued for several days thereafter constituted a medical condition that was sufficiently serious for purposes of the Eighth Amendment
Summary of this case from Baker v. GenslerOpinion
No. 03 Civ. 6562 (DAB) (AJP).
August 24, 2004
MEMORANDUM AND ORDER
Plaintiff Keith Ellis, proceeding pro se and in forma pauperis, brings this action under 42 U.S.C. § 1983 alleging excessive force and deliberate indifference on the part of Defendants in violation of his rights under the Eighth and Fourteenth Amendments of the United States Constitution. Defendants now move pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6) to dismiss (1) the entire action for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e; and (2) the excessive force claim as to Defendants Ercole, Roarke, and Potter and the deliberate indifference claim as to Defendants Powell and Shong for failure to state a claim upon which relief may be granted. For the reasons stated below, Defendants' motion is GRANTED IN PART.
I. BACKGROUND
A. Attacks on PlaintiffPlaintiff alleges that, on September 6, 2002, while he was an inmate at the Fishkill State Correctional Facility in Beacon, New York, he was physically attacked and beaten by several Fishkill correctional officers. On that date, Plaintiff was allegedly escorted by Correctional Officer Gordon Roarke to an unused unit of Fishkill where he was met by Defendant Sergeant R. Woodward. (Plaintiff's Memorandum of Law in Support of Amended Complaint ["Am. Compl. Mem."] ¶ 9; Am. Compl., Ex. C3 (Plaintiff Letter, dated September 21, 2002)). After Roarke left at the direction of Woodward, Woodward allegedly accused Plaintiff of possessing contraband and of threatening him, challenged Plaintiff to a fight, and uttered a racial slur. (Am. Compl. Mem. ¶ 9). After Plaintiff twice declined Woodward's challenges, Woodward allegedly physically attacked Plaintiff by slapping him in the face, slamming his head into a wall, and then stomping, kicking and spitting on him, all while continuing to curse at and use racial slurs towards him. (Id.). Roarke then returned and took Plaintiff to Defendant Sergeant Joseph Guarino's office, where Defendant Correctional Officers K. Collins, Matthew Hinkley and a third Officer allegedly handcuffed Plaintiff and Defendant Collins slapped Plaintiff in the face and pushed his head into the wall while Defendant Guarino, who was Collins and Hinkley's supervisor, watched and laughed. (Id.; Am Compl., Ex. B1 [Fishkill Superintendent's Written Response to Inmate Grievance No. #23392-02] at 2). As a result of these attacks, Plaintiff allegedly suffered a one-millimeter cut on the cornea of his right eye, contusions in both ears, and swelling on the side of his face. (Am. Compl. ¶ IV-A).
Plaintiff is currently housed in the Sullivan State Correctional Facility in Fallsburg, NY.
Ten days prior to these alleged attacks, Plaintiff had allegedly told a Lieutenant Decker that he feared for his life because of threats made against him by Defendant Woodward, and Decker had also read a letter from Plaintiff's mother to the Fishkill Superintendent which mentioned several threats made by Woodward to Plaintiff prior to the September 6, 2002 incident. (Am. Compl. Mem. ¶ 10; Am. Compl., Ex C3). However, Decker allegedly assured Plaintiff that nothing would happen to him. (Am. Compl. Mem. ¶ 10). In addition, Defendant Ercole, the Deputy Superintendent of Fishkill, allegedly was somehow made aware of but disregarded these threats against Plaintiff, and after the alleged attacks, he allegedly claimed Plaintiff's injuries were self-inflicted. (Id. ¶ 11).
B. Denial of Medical Treatment
Immediately following the alleged attacks on September 6, 2002, Plaintiff was taken by his alleged attackers to the Fishkill Special Housing Unit (SHU), known as "the Box," by his alleged attackers, where they strip-frisked and processed but did not photograph him. (Am. Compl., Ex. C3 at 2; Affirmation in Opposition to Defendants' Motion to Dismiss ["Pl. Aff."] ¶ 36). Moreover, when he asked the correctional officers who escorted him if he could see a doctor, they allegedly laughed at him. (Am. Compl., Ex.C3 at 2).
Later on that same evening, Plaintiff was visited in the SHU by Defendant Nurses Branch, Philips, Powell and Murphy. (Am. Compl. Mem. ¶ 13). He explained to Nurse Branch how he had been attacked and complained to Nurse Phillips of ringing in his ears, headaches, dizziness, and blurred vision, and asked her if he could see a doctor. (Id.; Pl. Aff. ¶ 38). However, Nurse Phillips refused his request and simply gave him aspirin. (Am. Compl. Mem. ¶ 13; Pl. Aff. ¶ 40). In addition, the other three nurses also refused his request to see a doctor, did not examine him any further, and did not offer him any treatment at that time. (Am. Compl. Mem. ¶ 13).
Three days later, on September 9, 2002, Plaintiff was seen by Nurse Branch again. (Pl. Aff. ¶ 42) He complained to her of continued dizzy spells and ringing in his ears, and Nurse Branch also observed continued swelling on his head and face. (Id. ¶¶ 42-43). At this point, Nurse Branch made an appointment for him to see a doctor on September 12, 2002. (Id.). Over the next two days, Plaintiff continued to suffer dizzy spells and ringing in his ears and was seen again by Nurse Phillips but received no medication for his symptoms. (Id. ¶¶ 45-47). Finally, on September 12, 2002, six days after he suffered his injuries during the alleged attacks, Plaintiff was examined by Defendant Doctor Shong, who noted the cut in Plaintiff's right eye and the contusions in his ears, and Plaintiff informed him of and attempted to show him the swelling on his face and the side of his head. (Am. Compl. Mem. ¶ 14). However, Dr. Song allegedly told Plaintiff his injuries were not serious and refused Plaintiff's request to take x-rays of his head and face. (Id.).
Plaintiff further alleges that this continued denial of medical care was part of a collusive effort by Fishkill correctional officers and medical staff to cover up his injuries and was also retaliation for his having informed Lieutenant Decker of the threats Sergeant Woodward made against him prior to September 6th. (Am. Compl., Ex. C3 at 2-3).
C. Plaintiff's Pursuit of Administrative Remedies
On September 11, 2002, Plaintiff filed a written inmate grievance with the Superintendent of Fishkill in which he complained of the alleged physical attacks against him on September 6, 2002, the denial of medical treatment in the three days following the alleged attacks, and the refusal of his request to see a doctor for his injuries suffered during the attacks. (Am. Compl. Mem. ¶ 7; Am. Compl., Ex. B1). Plaintiff's grievance was investigated by a Lieutenant Murphy, and, based on his investigation, the Superintendent denied Plaintiff's grievance on September 25, 2002. (Am. Compl. Ex. B1; Am. Comp. Mem. ¶ 7). However, Plaintiff appealed the Superintendent's decision to the New York State Department of Correctional Services' (DOCS) Central Office Review Committee (CORC), who affirmed the Superintendent's denial on October 30, 2002. (Am. Compl. Mem. ¶ 7; Am. Compl. Ex. B3 (CORC's Denial of Inmate Grievance No. 23392-02, dated October 30, 2002)).
On September 13, 2002, Plaintiff filed a second grievance, focusing solely on the medical care issues that arose after the alleged attacks, specifically the Defendant nurses' denying him adequate medical treatment for the three days following the attacks, the refusal of his request to see a doctor, and the allegedly inadequate care provided by Dr. Shong on September 12, 2002. (Am. Compl., Ex. B2 [Fishkill Superintendent's Response to Inmate Grievance No. 23407-02, dated October 8, 2002]). This grievance was also denied by the Superintendent, but Plaintiff never appealed the Superintendent's decision to the CORC. (Am. Compl., Ex. B2; Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss ["Pl. Mem."] at 3).
D. Procedural History of the Present Civil Action
On September 16, 2002, while both of Plaintiff's grievances were still pending with the Fishkill Superintendent, Plaintiff's Original Complaint in this action was received by the Pro Se Office of the United States District Court for the Southern District of New York. (See Original Compl. at 1). However, the Original Complaint was not actually filed with the Clerk of Court until August 28, 2003. (Id.). On this same date, Chief Judge Michael Mukasey granted Plaintiff's request to proceed in forma pauperis and issued an order directing Plaintiff to file an Amended Complaint within 60 days which (1) showed he had exhausted his administrative remedies, (2) named in the caption and statement of claim all those defendants who were personally involved in the incidents that Plaintiff was suing over, and (3) provided a short plain statement of facts supporting each of Plaintiff's claims as to each of the named Defendants. (Order of Chief Judge Michael Mukasey ["Mukasey Order"], dated August 28, 2003, at 4-5).
On October 1, 2003, Plaintiff filed his Amended Complaint, asserting (1) an excessive force claim against Defendants Woodward, Collins, and Hinkley for their direct participation in the alleged attacks on September 6, 2002, and Defendant Guarino for supervising and giving orders to those who participated directly in the attacks; (2) an excessive force claim against Defendant Ercole for failing to act to prevent the alleged excessive force violations by personnel under his supervision; and (3) a deliberate indifference claim against Defendants Branch, Murphy, Philips, Powell (the "Nurse Defendants") and Dr. Shong for their alleged failure to provide medical treatment for the injuries he suffered in the alleged attacks. (Am Compl. ¶¶ I-III).
On November 24, 2003, this Court ordered Plaintiff to serve all Defendants with the Amended Complaint within 120 days. (Order, dated November 24, 2003, at 1). Thereafter, on March 9, 2004, Magistrate Judge Andrew Peck, to whom this action was referred for general pretrial supervision, issued a scheduling order in the above-captioned case, pursuant to which Defendants were to respond to Plaintiff's Amended Complaint by April 19, 2004, fact and expert discovery were to be completed by July 16, 2004, parties were to notify the Court by July 21, 2004 of their intent to move for summary judgment, and parties were to move for summary judgment by August 13, 2004.
On April 19, 2004, Defendants Guarino, Woodward, Collins, Hinkley, Roarke, Potter, Powell, Ercole, and Shong filed the motion to dismiss now before the Court. Thereafter, in compliance with Judge Peck's order, the moving Defendants and Plaintiff proceeded with discovery. In late June, prior to the deadlines for completion of discovery and notification of intent to move for summary judgment, Defendants requested that Judge Peck extend the summary judgment motion filing deadline until 30 days after this Court rules on the present motion to dismiss, a request that Judge Peck denied. Thereafter, on July 19, 2003, the Defendants wrote to this Court, renewing their summary judgment deadline extension request and also seeking permission to move for summary judgment on the exhaustion issue as well as on the merits of Plaintiff's denial of medical care claims against Shong and the Nurse Defendants and his excessive force claim against Ercole in the event that their motion to dismiss is denied. (See Defendants' Letter to the Court, dated July 19, 2004). Thereafter, the Court extended the original August 13, 2004 filing deadline for summary judgment motions to August 27, 2004 to permit Defense counsel to attend to a family emergency. (See Memo-Endorsement, dated August 11, 2004).
The Court's records indicate that, to date, the United States Marshals have attempted, but to date been unable, to serve Defendants Branch, Murphy, Philips, Bernard and Decker with the summons and Amended Complaint in this action, nor have these five otherwise appeared as defendants. Accordingly, unless otherwise noted, the term "Defendants" is used in this opinion to refer to the moving Defendants.
II. DISCUSSION
A. Sua Sponte Dismissal of Certain Defendants
As an initial matter, the Court notes that while Defendants Roarke and Potter join in the present motion to dismiss, they, along with Lieutenant Decker, are not actually named as Defendants in the Amended Complaint or even in Plaintiff's affirmation and memorandum of law in opposition to the present motion. Moreover, while the Amended Complaint names Lieutenant Bernard as a Defendant, it contains absolutely no specific factual allegations against him despite Judge Mukasey's order directing Plaintiff to include factual allegations to support each claim against each named Defendants in his Amended Complaint. Indeed the only substantive reference to Bernard is one sentence contained in a September 21, 2002 letter written by Plaintiff and attached as an exhibit to the Amended Complaint which vaguely states that Plaintiff sought help from Bernard for an unspecified problem and that Bernard either "denied [Plaintiff] or pushed him off." (Am. Compl. Ex C3, at 3).
Lieutenant Decker is mentioned in the Amended Complaint, but Defendant specifically categorizes him as an expert witness rather than a Defendant. (Am. Compl., Article VII).
Accordingly, because the Amended Complaint is the operative pleading in this case, the Court dismisses sua sponte Defendants Roarke, Potter, Decker, and Bernard from the present action. See 28 U.S.C. § 1915(e) (2) (B) (giving a district court the authority to dismiss an in forma pauperis prisoner action "at any time if the court determines that the action . . . fails to state a claim on which relief may be granted . . .");Mardsen v. Federal Bureau of Prisons, 856 F. Supp. 832, 836 (S.D.N.Y. 1994) (dismissing sua sponte prisoner's § 1983 claim as to defendant who was not mentioned at all in the factual allegations contained in plaintiff's pro se complaint); Solis v. Breslin, No. 01-180, 2004 WL 1292783, at *2 (2d Cir. June 10, 2004) (unpublished decision) (affirming district court's sua sponte dismissal of pro se prisoner's amended complaint pursuant to 28 U.S.C. § 1915(e) where amended complaint contained no more specific factual allegations than did original complaint).
B. Dismissal for Failure to Exhaust Administrative Remedies
1. Legal Standard
Defendants move to dismiss all of Plaintiff's claims for failure to exhaust administrative remedies under both Rules 12(b)(1) and (6). However, because exhaustion is not a jurisdictional issue, see Richardson v. Goord, 347 F.3d 431, 433-34 (2d Cir. 2003), a Rule 12(b)(1) motion, in which matters outside the pleadings may be considered, is not appropriate.
Meanwhile, non-exhaustion is an affirmative defense which defendants have the burden of showing. See Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir. 1999) (characterizing the defense of non-exhaustion in a prisoner § 1983 suit as an "affirmative defense"); Foreman v. Goord, No. 02 Civ. 7089, 2004 WL 385114, at * 6 (S.D.N.Y. Mar. 2, 2004) (noting that "defendants bear the burden of showing non-exhaustion") (citingJenkins). Thus, dismissal under Rule 12(b)(6) is only appropriate where "failure to exhaust is apparent from the face of the complaint." McCoy v. Goord, 255 F. Supp.2d 233, 249 (S.D.N.Y. 2003); Rivera v. Pataki, 01 Civ. 5179, 2003 WL 21511939, at *4 (S.D.N.Y. July 1, 2003) (same) (citing Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74 (2d Cir. 1998)). On the other hand, "if non-exhaustion is not clear from the face of the complaint, a defendant's motion to dismiss should be converted, pursuant to Rule 12(b), to one for summary judgment limited to the narrow issue of exhaustion and the relatively straightforward questions about plaintiff's efforts to exhaust, whether remedies were available, or whether exhaustion might be, in very limited circumstances, excused." McCoy, 255 F. Supp.2d at 251;Foreman, 2004 WL 385114, at *6 (citing McCoy); Madison v. Wright, No. 02 Civ. 10299, 2004 WL 816429, at *1 (S.D.N.Y. Apr. 13, 2004) (quoting McCoy). In practice, conversion from a Rule 12(b)(6) motion to dismiss to a Rule 56 motion for summary judgment is required wherever there is a "legitimate possibility" that the district court will rely on material outside the pleadings. Amaker v. Weiner, 179 F.3d 48, 50 (2d Cir. 1999);Foreman, 2004 WL 385114, at *6 (citing Amaker).
Rule 12(b) provides, in relevant part:
If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
2. Plaintiff's Claims
Defendants argue that Plaintiff failed to exhaust administrative remedies as to either his excessive force or deliberate indifference claims prior to filing the present lawsuit6 as required by the PLRA.
The PLRA provides that "[n]o action shall be brought with respect to prison conditions under section 1983 . . ., 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). This 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, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). To satisfy the PLRA's exhaustion requirement, "a prisoner must grieve his complaint about prison conditions up through the highest level of administrative review" before filing suit. Porter v. Goord, No. 01 Civ. 8996, 2002 WL 140200, at *1 (S.D.N.Y. June 28, 2002);see also Fletcher v. Haase, No. 99 Civ. 9549, 2002 WL 313799, at *1 (S.D.N.Y. Feb. 27, 2002) ("This lawsuit . . . therefore, can only proceed after [plaintiff] has exhausted any available administrative remedies, including all appellate remedies provided within the system"); McCoy, 255 F. Supp.2d at 246 (quoting Porter v. Goord).
The DOCS' administrative remedial framework, known as the Inmate Grievance Program (IGP), involves a three-step administrative grievance process. First, an inmate must submit a written complaint to the Grievance Clerk of the Inmate Grievance Resolution Committee ("IGRC") within 14 days of the alleged occurrence. 7 N.Y.C.R.R. § 701.7(a). If the IGRC denies the inmate's claim, he must appeal it to the Superintendent of his facility within 4 days of the IGRC's written decision. 7 N.Y.C.R.R. § 701.7(b). The third step in the process is to appeal the Superintendent's decision to the DOCS' Central Office Review Committee ("CORC."). 7 N.Y.C.R.R. § 701.7(c). Thus, an appeal to the CORC is necessary to exhaust administrative remedies for the purposes of the PLRA.
Defendants also note in their moving papers that the DOCS has established an alternative grievance procedure for harassment claims, including excessive force claims. (Memorandum of Law in Support of Defendants' Motion to Dismiss ["Def. Mem."] at 11-12). However, while this process differs somewhat from the IGP process, the final step is still an appeal to the CORC. See 7 N.Y.C.R.R. § 701.11 (b)(6), (7).
a. Excessive Force Claims against Guarino, Woodward, Collins, and Hinkley
While Defendants concede that Plaintiff did exhaust the IGP with respect to his excessive force claim against Defendants Guarino, Woodward, Collins, and Hinkley, they argue that he did not do so prior to commencing the present action. They point to the fact that the CORC did not issue its decision denying Inmate Grievance No. 23392-02 until October 30, 2002, more than a month after the date on which Plaintiff's Original Complaint in the present action was received by the Southern District's Pro Se Office, September 16, 2002, which is, Defendants argue, the commencement date of the present action. (Memorandum of Law in Support of Defendants' Motion to Dismiss ["Def. Mem."] at 12-14). However, the Original Complaint was not actually filed with the Clerk of Court until August 28, 2003.
This Court does not share Defendants' view of when the present action was actually commenced. While it is true that some courts within the Second Circuit have held that a civil action is deemed filed when the complaint is received by the Pro Se Office, see, e.g., Williams v. Cooney, No. 01 Civ. 4623, 2004 WL 434600, at *3 n. 3 (S.D.N.Y., Mar 08, 2004); Rodney v. Goord, No. 00 Civ. 3724, 2003 WL 21108353, at *5 (S.D.N.Y. May 15, 2003); the Second Circuit itself has not ruled on this issue. Meanwhile, Judge McKenna has ruled to the contrary, finding that the date on which a complaint is received by the Pro Se Office is not relevant "in determining whether a plaintiff has exhausted his administrative remedies prior to bringing suit," and noting that dismissing an action at a time when the plaintiff had already exhausted his administrative remedies would be pointless since no further action could be taken at the administrative level anyway.Dimick v. Baruffo, No. 02 Civ. 2151, 2003 WL 660826, at *4 n. 4 (S.D.N.Y. Feb. 28, 2003). The Court finds Judge McKenna's reasoning persuasive and thus holds that the present action was commenced on August 28, 2003, which was after Plaintiff had already exhausted his administrative remedies on his excessive force claim. Accordingly, this claim cannot be dismissed for non-exhaustion.
b. Denial of Medical Care Claims
As for Plaintiff's denial of medical care claims, Defendants argue that Plaintiff failed to exhaust his administrative remedies because Plaintiff's second inmate grievance, No. 23407-02, filed on September 13, 2002, was never even appealed to the CORC. (Def. Mem. at 14). Plaintiff concedes he did not appeal Grievance 23407-02 to the CORC, but argues that this is irrelevant since his first grievance, No. 23392-02, which, as discussed above, was fully exhausted on October 30, 2002, dealt with both the excessive force and the denial of medical treatment issues. (Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss ["Pl. Mem."] at 3). Moving Defendants in turn contend that even if Grievance 23407-02 addressed the denial of medical care, it did not exhaust Plaintiff's deliberate indifference claim as to Defendants Powell and Dr. Shong because the Grievance did not specifically identify the personnel who allegedly denied him medical care, alleged only that Plaintiff was denied access to medical personnel for three days, and was filed on September 9, 2002, before the alleged misconduct by Shong even took place. (Def. Reply at 7-8). To support their latter arguments, Defendants attach a copy of Grievance 23392-02 to their moving papers. (See Declaration of Thomas G. Eagen ["Eagen Decl."], Ex. B).
It is clear from the face of the Amended Complaint and its attachments that Plaintiff did not exhaust his administrative remedies for his deliberate indifference claim against Dr. Shong. According to Plaintiff's Memorandum in Support of his Amended Complaint, Dr. Shong's alleged misconduct took place on September 12, 2002 (Am. Compl. Mem. ¶ 14), which, as Exhibit B1 to the Amended Complaint makes clear, was at least a day after Plaintiff filed Grievance 23392-02. (Am. Compl. Ex. B1, at 1). Thus, there is no way that Grievance 23392-02 pertained to allegations against Dr. Shong. Accordingly, Plaintiff's deliberate indifference claim against Dr. Shong must be dismissed with prejudice for failure to exhaust administrative remedies.
While dismissal for failure to exhaust administrative remedies should ordinarily be without prejudice, see Morales v. Mackalm, 278 F.3d 126, 128 (2d Cir. 2002), dismissal with prejudice is proper where administrative remedies have become unavailable after the prisoner had ample attempt to use them and no special circumstances justified failure to exhaust. Berry v. Kerik, 366 F.3d 85, 87-88 (2d Cir. 2004). In this case, the remaining administrative remedy for Plaintiff to pursue on his claim against Dr. Shong is an appeal to the CORC. However, this remedy is no longer available to Plaintiff because he did not appeal the Superintendent's written denial of his second grievance to the CORC within four working days as required by 7 N.Y.R.R § 701.7(c), and there does not appear to be any good reason for his failure to so, especially since more than ten months elapsed between the Superintendent's written denial on October 8, 2002 and the commencement of this action on August 28, 2003.
In contrast, it is not clear from the face of Plaintiff's Amended Complaint or the documents attached thereto that he failed to exhaust his deliberate indifference claim against the Nurse Defendants through the IGP process. While the Amended Complaint itself is silent as to whether Plaintiff administratively grieved his denial of medical care claim, Exhibit B1 to the Amended Complaint, which is a copy of the Fishkill Superintendent's written denial of Grievance 23392-02, indicates that Plaintiff's failure to receive medical care or access to a physician on September 6, 2002, which forms the basis of his cause of action against the Nurse Defendants, was alleged in Grievance 23392-02. Defendants' arguments, meanwhile, are based on information contained in documents outside of the pleadings which may not be considered by the Court in deciding a Rule 12(b) (6) motion. Thus, pursuant to Rule 12(b), Defendants' motion to dismiss the deliberate indifference claims against the Nurse Defendants for non-exhaustion shall be converted into a motion for summary judgment which, for the sake of judicial economy, shall be ruled on together with the motion for summary judgment on the merits that Defendants have asked the Court for permission to make. Furthermore, in order to comply with Rule 12(b)'s requirement that the parties have a "reasonable opportunity to present all material made pertinent to such a motion by Rule 56," the parties shall engage in additional discovery limited solely to the exhaustion issue.
c. Excessive Force Claim against Ercole
Defendants also argue that Plaintiff failed to exhaust his administrative remedies with respect to his "failure to protect" claim against Defendant Ercole. Specifically, they contend that Plaintiff "makes no allegation that he filed a grievance alleging failure to protect by Defendant Ercole." (Def. Mem. at 14-15).
However, because, as discussed above, there is no burden on a plaintiff prisoner to plead exhaustion affirmatively in order to survive a motion to dismiss, a plaintiff's failure to allege that he filed grievances with respect to all the incidents discussed in his complaint "is not a basis for dismissal on a motion to dismiss," especially when the complaint has alleged exhaustion in general terms. McCoy, 255 F. Supp.2d at 255 (converting motion to dismiss for nonexhaustion to motion for summary judgment even where complaint did not allege plaintiff had filed grievances with respect to all the incidents complained of); Foreman, 2004 WL 385114, at *6 (converting motion to dismiss to summary judgment motion where complaint alleged full exhaustion in "general terms"). In the present case, Plaintiff avers generally that Grievance 23392-02 "explained in detail some of the facts that took place upon the person of the Plaintiff." (Am. Compl. Mem. ¶ 7). Moreover, none of the attachments to the Amended Complaint clearly indicate one way or the other whether Plaintiff administratively grieved his excessive force claim against Ercole.
Accordingly, because the Court must look to documents outside the pleadings to resolve this exhaustion issue, Defendants' motion to dismiss the claim against Ercole should also be converted into a motion for summary judgment. However, as discussed in Part II.C.1. infra, the Court nevertheless dismisses the claim against Ercole on the merits pursuant to Rule 12(b) (6).
d. Total Exhaustion
Finally, Defendants argue that, even if only one or some of Plaintiff's claims are dismissable on non-exhaustion grounds, the Court should invoke the so-called "total exhaustion" doctrine and dismiss the entire action. (Def. Mem. at 15-18). Specifically, Defendants contend that the plain language of the PLRA, which states that "no action" rather than "no claim" shall be brought until such administrative remedies as are available are exhausted, 42 U.S.C. § 1997e(a), clearly indicates that exhaustion of all claims within an action is required in order for the complaint to proceed. (Id. at 16-17). In addition, Defendants contend that dismissing Plaintiff's unexhausted claims but allowing his exhausted claims to proceed would cause bifurcation of the case, which, they argue, the United States Supreme Court, in Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002), held was contrary to the purposes of the PLRA. (Def. Mem. at 17).
The Second Circuit has recently rejected the total exhaustion doctrine, holding that neither the text and legislative history of the PLRA, nor "the policies underlying the exhaustion doctrine" require a district court to dismiss a prisoner's entire lawsuit when some, but not all, of his claims are unexhausted.See Ortiz v. McBride, No. 02-088, 2004 WL 1842644, at *7, 12 (2d. Cir. Aug. 18, 2004) (holding that "the presence of [plaintiff's] unexhausted Eighth Amendment claim in [plaintiff's] complaint when he brought it did not require the district court to dismiss the action in its entirety"). Accordingly, this Court shall not dismiss Plaintiff's entire lawsuit simply because he has failed to exhaust the administrative remedies for his denial of medical care claim against Dr. Shong.
C. Dismissal for Failure to State a Claim
As an initial matter, where a plaintiff proceeds pro se, a court must liberally construe the complaint and "'interpret [it] to raise the strongest arguments that [it] suggests,'" Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)), thus holding the pro se pleading "'to less stringent standards than formal pleadings drafted by lawyers.'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam)); see also Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994), cert. denied, 513 U.S. 836, 115 S.Ct. 117, 130 L.Ed.2d 63 (1994).
More generally, when deciding a Rule 12(b) (6) motion, the Court must read the complaint generously, accepting as true the factual allegations in the complaint and drawing all reasonable inferences in favor of the plaintiff. Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995; Mills v. Polar Molecule Corp., 12 F.3d 1170, 1174 (2d Cir. 1993). Dismissal is only proper when "it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Because a Rule 12(b) (6) motion is used to assess the legal feasibility of a complaint, a court should not "assay the weight of the evidence which might be offered in support thereof." Ryder Energy Distribution Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984). Rather, the court must limit its consideration to the facts that appear on the face of the complaint, as well as any documents attached to or referenced in the complaint. See Rombach v. Chang, 355 F.3d 164, 169 (2d Cir. 2004); Taylor v. Vermont Dept. of Educ., 313 F.3d 768, 776 (2d Cir. 2002). In addition, consistent with its mandate to construe pro se pleadings liberally, the Court may also consider information contained in plaintiff's opposition papers. See Saul v. NYC Dept. of Corrections, 02 Civ. 5904, 2004 WL 691374, at *3 (S.D.N.Y. Mar. 31, 2004); Indelicato v. Suarez, 207 F. Supp.2d 216, 218 (S.D.N.Y. 2002).
1. Excessive Force Claim Against Ercole
Defendants also move to dismiss the excessive force claims against Potter and Roarke. However, because the Court dismisses the claims against these two defendants sua sponte, see Part II.A. supra, it is not necessary for the Court to determine whether such claims also merit dismissal under Rule 12(b) (6).
Defendants argue that the excessive force claim against Defendant Ercole should be dismissed because Plaintiff's Amended Complaint does not sufficiently allege Ercole's personal involvement in the alleged attacks. (Def. Mem. at 19).
Plaintiff's excessive force claim against Ercole is based on a theory of supervisory liability, attempting to hold him liable as Deputy Superintendent of Fishkill for the unconstitutional acts of correctional officers under his supervision. (Am. Compl. ¶ III). For a defendant to be liable under § 1983 on a theory of supervisory liability, he must have had some personal involvement in the allegedly unlawful conduct of his subordinates. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) ("It is well settled in this Circuit that "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.") (citations omitted). Dismissal of a section 1983 claim is proper where, as here, the plaintiff "does no more than allege that [defendant] was in charge of the prison." Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987) (quoting Williams v. Vincent, 508 F.2d 541, 546 (2d Cir. 1974)).
"The personal involvement of a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring." Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citations omitted).
Plaintiff appears to rely on the fifth type of personal involvement, alleging that Ercole was "made aware of the threats being made upon the Plaintiff by Sgt. Woodward and did nothing . . ." (Am. Compl. Mem. ¶ 11; Pl. Mem. at 7). Defendants argue, however, that this "conclusory allegation" of Ercole's knowledge of the likelihood of the alleged attacks is insufficient to survive a Rule 12(b)(6) motion to dismiss. (Def. Mem. at 19-20). The Court agrees. Even construing Plaintiff's Amended Complaint and supporting papers liberally, the Court can find no specific facts contained therein to support the allegation that Ercole knew of the threats to Plaintiff prior to the alleged attacks; Plaintiff's conclusory allegation, by itself, cannot sustain a § 1983 claim. See, e.g. Romer v. Morgenthau, 119 F. Supp.2d 346, 355 (S.D.N.Y. 2000) ("Mere allegations that defendants knew of the wrongs does not establish personal involvement");McCoy, 255 F. Supp.2d at 258 (dismissing prisoner's § 1983 claims against certain defendants pursuant to Rule 12(b)(6) where complaint did "not plead any facts to suggest that these defendants were personally aware of or involved in any of the alleged constitutional violations").
Accordingly, because Plaintiff has failed to plead sufficiently Ercole's personal involvement in the alleged attacks against him, dismissal of Plaintiff's claim against Ercole pursuant to Rule 12(b)(6) is appropriate.
2. Denial of Medical Care Claim Against Powell
Defendants moved to dismiss the deliberate indifference claim as to both Defendants Powell and Shong. However, because the claim against Shong is dismissed with prejudice for failure to exhaust administrative remedies, see Part II.B.2.b. supra, it is not necessary for the Court to address the claim on its merits.
Finally, Defendants argue that Plaintiff's denial of medical care claim against Defendant Nurse Powell should be dismissed because he has not adequately pled that Powell was deliberately indifferent to his serious medical needs. (Def. Mem. at 21-25).
It is well-settled that in order to establish an Eighth Amendment claim arising out of inadequate medical care, a prisoner must prove "deliberate indifference to [his] serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The standard of deliberate indifference includes both objective and subjective components. "First, the alleged deprivation must be, in objective terms, 'sufficiently serious.'" Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (citations omitted). Second, the defendant "must act with a sufficiently culpable state of mind." Id. An official acts with the requisite deliberate indifference when that official "knows of and disregards an excessive risk to inmate health and safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).
a. Serious Medical Condition
The objective prong of the 8th Amendment deliberate indifference standard contemplates "a condition of urgency" that may result in "death, degeneration or extreme pain." Hathaway, 37 F.3d at 66. While the seriousness determination is a very fact-specific inquiry, factors that courts consider include "the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain." Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (citations and internal quotations omitted).
When Plaintiff arrived at the SHU following the alleged attacks on September 6, 2002, he allegedly had swelling on his face, contusions in both ears and on his forehead, abrasions on his shoulder, a one millimeter laceration in his right eye, and suffered from blurred vision, headaches, dizziness and ringing in his ears, the latter two of which continued for several days thereafter. (Am. Compl. ¶ IV-A; Am. Compl. Mem. ¶ 13; Pl. Aff. ¶¶ 38-46). Such injuries clearly constitute a serious medical condition for Eighth Amendment purposes. Plaintiff's injuries and how he allegedly received them suggest a likelihood of head trauma, significant eye damage and potential hearing loss, all of which a reasonable doctor would find important and worthy of treatment. Moreover, dizziness and ringing in the ears severe enough to compel Plaintiff to request medical attention repeatedly undoubtedly affect balance and hearing and thus necessarily affect daily life activities such as walking and communicating with prison staff and other inmates. Finally, while Plaintiff does not allege that his injuries were chronic-he does not allege that he continued to suffer any symptoms more than 10 days after the alleged attacks — his pleadings and opposition papers make clear that the pain caused by these injuries was severe. Accordingly, Plaintiff has sufficiently pled the objective prong of his deliberate indifference claim.
b. Defendant Powell's State of Mind
As noted above, the deliberate indifference standard requires proof that Powell "knew of and disregarded [Plaintiff's] serious medical needs." Chance, 143 F.3d at 703. "It is well-established that mere disagreement over the proper treatment does not create a constitutional claim. So long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment violation." Id. Moreover, negligence by prison medical personnel, even if it amounts to medical malpractice does not, without more, rise to the level of a constitutional violation.Id. (citing Estelle v. Gamble, 429 U.S. at 105-06). However, even some instances of medical malpractice may involve the level of culpability necessary to sustain a deliberate indifference claim, that is, "the equivalent of criminal recklessness," or acting with "'a conscious disregard of a substantial risk of serious harm.'" Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (quoting Farmer, 511 U.S. at 839).
The allegations contained in Plaintiff's pleadings and opposition papers, if true, would support the inference that Nurse Powell recklessly denied Plaintiff medical treatment for the injuries he suffered on September 6, 2002. Because Powell was allegedly present in the SHU with Plaintiff and the other Nurse Defendants immediately following the alleged attacks, and in fact interacted with Plaintiff at that time (see Am. Compl. Mem. ¶ 13), it is reasonable to infer that she observed his physical injuries, heard his description of his symptoms and the attacks, and was thus fully aware of his serious medical condition. She therefore had to have known aspirin could not treat Plaintiff's lacerated eye, or the head and ear trauma that was no doubt causing his dizziness and the ringing in his ears, and that failing to treat these injuries would likely cause him continued severe discomfort, if not long term damage to his physical health.
While it is true that "Plaintiff's preference for an examination by a physician does not sustain a claim for denial of medical assistance," Patterson v. Lilley, No. 02 Civ. 6056, 2003 WL 21507345, at *5 (S.D.N.Y. June 30, 2003), Powell also had to have known that the Plaintiff's lacerated eye required some sort of protection to prevent infection (like an eye patch), that his head and ears needed to be examined for internal injuries, and that she should either provide such interventions herself or get a doctor who had the training and authority to do so. Yet, she did neither. Thus, in the Court's view, Powell's conduct, as Plaintiff describes it, was not simply an inadequate or questionable course of treatment, but complete denial of necessary treatment, which courts have found rises to the level of deliberate indifference. See Harding v. Kuhlmann, 588 F. Supp. 1315, 1316 (S.D.N.Y. 1984), aff'd, 762 F.2d 990 (2d Cir. 1985) ("Deliberate indifference is properly pleaded by allegations of . . . complete denial of medical treatment . . .") (citations and internal quotations omitted);Patterson, 2003 WL 21507345, at *4 (distinguishing negligent treatment, which did not rise to the level of deliberate indifference, from "refus[al] to treat plaintiff altogether.").
Perhaps most significantly, Plaintiff alleges that Powell-and all other Fishkill personnel who denied him medical care-had ulterior motives for denying him necessary treatment, namely a desire to conceal his injuries from those who were investigating the alleged attacks and to retaliate against him for reporting alleged threats made against him by Sergeant Woodward to Lieutenant Decker. (Am. Compl., Ex. C3 at 2-3). The Second Circuit has held that allegations of ulterior motives such as these on the part of prison medical personnel can establish the culpable state of mind necessary to sustain a deliberate indifference claim at the 12(b) (6) stage. See Chance, 143 F.3d at 704 (holding allegation that defendant dentists' choice of treatment was motivated by monetary incentives rather than their medical views, if proven true, would satisfy state of mind prong of plaintiff prisoner's deliberate indifference claim).
It may be true that Plaintiff's allegations of Powell's and others' improper motives will be difficult to prove, and it may very well become clear, at the summary judgment stage, that he cannot prove them. However, these allegations are not grounds for a Rule 12(b)(6) dismissal. Chance, 143 F.3d at 704 ("Rule 12(b)(6) does not countenance . . . dismissals based on a judge's disbelief of a complaint's factual allegations.") (quotingNeitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)).
Accordingly, the Court finds that Plaintiff has sufficiently plead both elements of his deliberate indifference claim against Defendant Powell, and Rule 12(b)(6) dismissal is therefore improper.
D. Leave to Amend
There remains the question of whether Plaintiff should be granted leave to amend his Complaint again in order to cure the deficiencies in his pleadings which have caused the dismissal of his claims against Defendants Potter, Roarke, Decker, Bernard and Ercole. Federal Rule of Civil Procedure 15(a) requires that leave to amend "shall be freely granted when justice so requires." Fed.R.Civ.P. 15(a). Moreover, "[a] pro se plaintiff who brings a civil rights action should be 'fairly freely' afforded an opportunity to amend his complaint . . ." Satchell v. Dilworth, 745 F.2d 781, 785 (2d Cir. 1984). Nevertheless, leave to amend should be denied even to pro se plaintiffs "if there is an 'apparent or declared reason — such as undue delay, bad faith or dilatory motive . . ., repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party . . . [or] futility of amendment.'" Dluhos v. The Floating and Abandoned Vessel Known as "New York", 162 F.3d 63, 69 (2d Cir. 1998) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). Ultimately, the decision to grant leave to amend a complaint rests within the discretion of the district court. Foman, 371 U.S. at 182.
In the present case, Plaintiff has already amended his Complaint once and also further pled his claims through his affirmation and memorandum of law in opposition to the present motion, both of which the Court has treated as part of his Amended Complaint. In essence, Plaintiff has had three bites at the apple. Moreover, the pleading deficiencies that have caused dismissal of his claims against Potter, Roarke, Decker, Bernard, and Ercole are the same deficiencies Judge Mukasey put Plaintiff on notice of when he granted him leave to amend his Original Complaint, namely (1) failure to name individual defendants in the Caption and Statement of Claim of his Complaint, and (2) failure to plead facts to support each of his claims. (Mukasey Order 4-5). Thus, "this is not a case where 'justice so requires'" leave to amend under Rule 15(a). Denny v. Barber, 576 F.2d 465, 471 (2d Cir. 1978) (refusing to grant plaintiff leave to amend his complaint a second time when district judge, in dismissing initial complaint, had put plaintiff's counsel on notice of the very defects that were also contained in the first amended complaint).
In fact, the present case is almost factually identical toLumaj v. Williams-GMDC, No. 03 Civ. 1849, 2004 WL 1207894 (S.D.N.Y. June 2, 2004), in which Judge Castel denied a pro se prisoner plaintiff leave to amend his § 1983 complaint a second time. In Lumaj, Judge Mukasey had previously granted plaintiff leave to amend his original complaint, which asserted deliberate indifference, failure to protect, and other claims against various officials at the Rikers Island correctional facility, to set forth specific allegations against each defendant and allegations that he had exhausted his administrative remedies.Id. at * 2. When Lumaj's amended complaint still failed to allege sufficient facts to support his claims, Judge Castel dismissed the entire action pursuant to Rule 12(b)(6). Id. at *8. In addition, he denied Lumaj's motion to amend his complaint again, reasoning that Lumaj had already been permitted to amend his complaint once and also had the opportunity to allege facts in his papers in opposition to defendants' motion to dismiss but that none of these papers sufficiently pled his claims. Id. at *3. This Court sees no reason to treat the Plaintiff in the present case any differently. Accordingly, leave to amend is denied.
E. Service of Defendants Branch, Murphy and Phillips
As discussed above, the Court's records indicate that the United States Marshals have to date been unable to serve Defendants Branch, Murphy and Phillips with the Summons and Amended Complaint, nor have these Defendants otherwise appeared in this case.
Federal Rule of Civil Procedure 4(m) provides that "[i]f service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice or direct that service be effected within a specified time." Fed.R.Civ. (m). More than 120 days have expired since Plaintiffs' Amended Complaint was filed with the Court.
However, a pro se litigant is entitled to assistance from the district court in effectuating service on a defendant. See Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997) (per curiam). Thus, in the spirit of Valentin, the Court hereby directs that the Attorney General (1) assist the United States Marshals in locating and effectuating service upon Defendants Branch, Murphy and Phillips, or, (2) seek to obtain authority to accept service on these Defendants' behalf. In addition, Plaintiff's time for serving these Defendants is hereby extended until the Attorney General clearly informs the Court and Plaintiff of either these Defendants' whereabouts or that he will accept service on their behalf.
F. Defendants' Request to Move for Summary Judgment
As discussed in Part I.D. supra, Defendants have submitted a letter to the Court requesting permission to move for summary judgment on the merits as to Plaintiff's denial of medical care claim against Nurse Powell and setting forth their bases for doing so. (See Defendants' Letter to the Court, dated July 19, 2004, at 2.). While it would seem to the Court that (1) the seriousness of Plaintiff's injuries on September 6, 2002 and (2) Nurse Powell's state of mind when she refused to treat Plaintiff or allow to him see a doctor on that date are genuine issues of material fact that would normally preclude summary judgment, should Defendants' insist, mindful of potential sanctions under F.R.C.P. 11 and 56(g), on moving for summary judgment, they may do so.
III. CONCLUSION
For the reasons stated above, Defendants' motion to dismiss is GRANTED IN PART as follows:
(1) Plaintiff's denial of medical care claim against Defendant Dr. Shong is dismissed with prejudice for failure to exhaust administrative remedies;
(3) Plaintiff's excessive force claims against Defendants Guarino, Woodward, Collins, and Hinkley were fully exhausted prior to the commencement of this action and are thus NOT dismissed on non-exhaustion grounds;
(4) Defendants' motion to dismiss Plaintiff's denial of medical care claims against the Nurse Defendants for failure to exhaust administrative remedies is hereby converted to a motion for summary judgment pursuant to F.R.C.P. 12(b);
(5) Plaintiff's excessive force claim against Defendant Ercole is dismissed with prejudice pursuant to F.R.C.P. 12(b) (6) for failure to state a claim upon which relief may be granted;
(6) Plaintiff has sufficiently pled his denial of medical care claim against Nurse Powell, and thus this claim shall NOT be dismissed pursuant to F.R.C.P. 12(b)(6).
In addition, the Court dismisses sua sponte Defendants Potter, Roarke, Decker and Bernard pursuant to 28 U.S.C. § 1915(e).
Defendants Guarino, Woodward, Hinkley, Collins, and Powell shall answer Plaintiff's Amended Complaint within 20 days of the date of this Order. In addition, within 30 days of the date of this Order, the Attorney General shall report to the Plaintiff and the Court on the whereabouts of Defendants Branch, Murphy and Phillips and whether he will accept service on their behalf. The Plaintiff shall then have 30 days from receipt of the Attorney General's report to effectuate service on Defendants Branch, Murphy and Phillips.
Defendants' request to move for summary judgment on Plaintiff's denial of medical care claim is GRANTED. This motion shall be combined with Defendants' motion for summary judgment for failure to exhaust administrative remedies. With respect to the exhaustion issue, the parties are free to rely on the papers they have already submitted in conjunction with Defendants' motion to dismiss, or they may incorporate the exhaustion issue into the papers they submit in conjunction with Defendants' motion for summary judgment on the merits. In addition, no later than 60 days from the date of this Order, the parties shall, to the extent they have not already done so, complete additional discovery limited to the exhaustion issue.
The filing deadline for Defendants' summary judgment motions is adjourned sine die. Once Defendants Branch, Murphy, and Phillips have either answered Plaintiff's Amended Complaint or been dismissed from the case for lack of service, this Court shall set a summary judgment briefing schedule.
SO ORDERED.