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PROCTOR v. VADLAMUDI

October 31, 1997

DAVID PROCTOR, Plaintiff,
v.
VADLAMUDI, DR.; MARCY CORRECTIONAL FACILITY AND COUNTERPARTS; Defendants.



The opinion of the court was delivered by: HURD

 This matter was referred to the undersigned for report and recommendation by the Honorable Rosemary S. Pooler, District Judge, pursuant to the Local Rules of the Northern District of New York. Plaintiff filed his complaint on February 12, 1996, alleging violation of his constitutional right to be free from cruel and unusual punishment as guaranteed by the Eighth Amendment to the United States Constitution. Defendants move to dismiss the complaint pursuant to Fed. R. Civ. P. 12 (b)(6). Plaintiff responded in opposition.

 I. FACTS

 Following are the facts as gleaned from plaintiff's complaint. Plaintiff was and is incarcerated at Marcy Correctional Facility. In late November 1995, plaintiff injured his right thumb by accidentally dropping a weight of approximately thirty pounds onto the thumb. Plaintiff was seen at the prison medical clinic and defendant Dr. Vadlamudi ordered an x-ray of the thumb. The x-ray revealed that no bones had been broken. The thumb was treated by wrapping it in gauze and securing it with a stick. Plaintiff continued to be bothered by pain, and therefore returned to sick call. Plaintiff saw Dr. Vadlamudi on December 13, 1995. At that time, the thumb was painful, swollen, and draining pus. Dr. Vadlamudi prescribed an oral antibiotic and topical bactericidals. Plaintiff was seen several additional times because the pain in his thumb continued. The thumb nail eventually fell off a few days prior to an appointment with Dr. Vadlamudi on January 19, 1996. Plaintiff filed the instant complaint seeking $ 8 million in damages on February 12, 1996. At no time did he pursue the prison administrative grievance process.

 II. DISCUSSION

 A. Motion to Dismiss Standard

 A cause of action shall not be dismissed for failure to state a claim under Fed. R. Civ. P. 12(b)(6), "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). In considering a motion brought pursuant to Fed. R. Civ. P. 12(b), the court must assume that all of the allegations in the complaint are true. Id. In reviewing the sufficiency of a complaint at the pleading stage, "the issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974).

 Where a motion to dismiss is made prior to any discovery or the filing of an answer, the court is loath to dismiss the complaint, regardless of whether the plaintiff is unlikely to prevail, unless the defendant can demonstrate that plaintiff is unable to prove facts which would entitle him to relief. Wade v. Johnson Controls, Inc., 693 F.2d 19, 22 (2d Cir. 1982); see also Egelston v. State Univ. College, 535 F.2d 752, 754 (2d Cir. 1976). "This caution against dismissal applies with even greater force where the complaint is pro se, or where the plaintiff complains of a civil rights violation." Easton v. Sundram, 947 F.2d 1011, 1015 (2d Cir. 1991)(citations omitted), cert. denied, 504 U.S. 911, 118 L. Ed. 2d 548, 112 S. Ct. 1943 (1992).

 B. Exhaustion of Administrative Remedies

 Defendants first seek dismissal of plaintiff's complaint because plaintiff failed to plead exhaustion of administrative remedies, and in fact, did not pursue such remedies. Plaintiff's complaint reflects that plaintiff did not pursue the prisoner grievance procedure. (Compl. P IV.)

 The Civil Rights of Institutionalized Persons Act, as amended ("CRIPA"), precludes the bringing of a civil rights action with respect to prison conditions unless and until administrative remedies are exhausted. 42 U.S.C.A. § 1997e(a) (1997 Supp.). However, the CRIPA was not signed into law until April 26, 1996. Plaintiff's complaint was filed in February 1996, some two months prior. While defendant does not address the retroactivity of the absolute requirement for exhaustion of administrative remedies, it is clear that this requirement cannot be applied retroactively because to do so would "impair rights [plaintiff] possessed when he acted, increase [his] liability for past conduct or impose new duties with respect to transactions already completed." Landgraf v. USI Film Products, 511 U.S. 244, 280, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994). Accordingly, plaintiff's complaint should not be dismissed on the basis that he failed to plead exhaustion of administrative remedies, and in fact failed to exhaust such remedies.

 C. Defendant Marcy Correctional Facility and its Counterparts ("MCF")

 Defendant MCF argues that it enjoys sovereign immunity from suit under the Eleventh Amendment to the United States Constitution. Agencies of the state, as well as the state itself, are immune from suits brought pursuant to 42 U.S.C. § 1983. Daisernia v. State of New York, 582 F. Supp. 792, 796 (N.D.N.Y. 1984); Evans v. Headley, 566 F. Supp. 1133, 1140 (S.D.N.Y. 1983)(dismissing suit against New York State Department of Correctional Services on sovereign immunity grounds).

 MCF is clearly an agency of the state, and as such, is entitled to sovereign immunity. Therefore, the complaint as ...


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