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January 25, 2002


The opinion of the court was delivered by: William C. Conner, Senior District Judge.


Pro se plaintiff Angel Martinez brings the instant action under 42 U.S.C. § 1983 against defendants Dr. Kyee Tint Maw, Dr. John Perilli and Physician Assistant ("P.A.") Philip Williams alleging deliberate indifference to medical needs in violation of the Eighth Amendment. Defendants move to dismiss the Complaint pursuant to FED. R. CIV. P. 12(b)(6), arguing that plaintiff failed to exhaust his available administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). For the reasons set forth below, defendants' motion is granted.



I. Standard of Review

On a motion to dismiss under Rule 12(b)(6), the issue is "whether the claimant is entitled to offer evidence to support the claims." Scheuer, 416 U.S. at 236, 94 S.Ct. 1683; Hertz Corp., 1 F.3d at 125. A complaint should not be dismissed for failure to state a claim "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." Padavan v. United States, 82 F.3d 23, 26 (2d Cir. 1996) (quoting Hughes v. Rowe, 449 U.S. 5, 10, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980)). Generally, "[c]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." 2 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 12.34[1][b] (3d ed. 1997); see also Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1088 (2d Cir. 1995). However, pro se complaints "are held to `less stringent standards than formal pleadings drafted by lawyers,' and are to be construed liberally on a motion to dismiss." Van Ever v. New York State Dep't of Corr. Servs., No. 99 Civ. 12348, 2000 WL 1727713, at *2 (S.D.N.Y. Nov. 21, 2000) (citations omitted).

In assessing the legal sufficiency of a claim, the court may consider those facts alleged in the complaint, documents attached as an exhibit thereto or incorporated by reference, see FED. R. CIV. P. 10(c); De Jesus v. Sears, Roebuck & Co., Inc., 87 F.3d 65, 69 (2d Cir. 1996), and documents that are "integral" to plaintiffs claims, even if not explicitly incorporated by reference. Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 46-48 (2d Cir. 1991); Lee v. State of New York Dep't of Corr. Servs., No. 97 Civ. 7112, 1999 WL 673339, at *2 n. 4 (S.D.N.Y. Aug. 30, 1999); see United States Fidelity & Guaranty Co. v. Petroleo Brasileiro S.A.-Petrobas, No. 98 Civ. 3099, 2001 WL 300735, at *2 (S.D.N.Y. Mar. 27, 2001) ("the Court can consider documents referenced in the complaint and documents that are in the plaintiffs' possession or that the plaintiffs knew of and relied on in their suit.").

II. Exhaustion Requirement

Defendants argue that plaintiffs claim should be dismissed for failure to exhaust administrative remedies. A prisoner must exhaust all available remedies before bringing an action regarding prison conditions. See Neal v. Goord, 267 F.3d 116 (2d Cir. 2001); Wright v. Dee, 54 F. Supp.2d 199 (S.D.N.Y. 1999). The PLRA 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." 42 U.S.C. § 1997e(a). Exhausting administrative remedies after a complaint is filed will not save a case from dismissal. See Neal 267 F.3d at 122. The Supreme Court recently held that the PLRA exhaustion requirement applies to suits for monetary damages even where monetary damages are not available through the administrative process, as long as the grievance tribunal has authority to take some responsive action. See Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001).

The Second Circuit recently clarified the scope of the exhaustion requirement to include claims brought for inadequate medical treatment. In Neal, the plaintiff brought a § 1983 claim for indifference to his medical needs after he suffered a lower back injury. 267 F.3d at 118. The plaintiff argued that because he alone suffered the alleged misconduct on isolated occasions, his claim did not relate to "prison conditions" and was therefore not subject to the PLRA exhaustion requirement. See id. at 120. In holding that this type of claim for medical indifference did relate to "prison conditions," the court reasoned that:

[while] [w]e recognize that a lack of adequate medical care certainly is a deprivation an individual prisoner suffers as a condition of his own confinement; yet, even inadequate, untimely or incompetent medical care may simply be indicative of the level of care generally received by the entire prison population. Taken to its logical conclusion, plaintiffs argument would ultimately preclude almost all prisoner complaints from falling under the exhaustion requirement. Since most prisoners file suit regarding an alleged deprivation suffered individually — as opposed to litigating claims on behalf of an entire prison population — were we to adopt the standard advanced by plaintiff, it would render — 1997e(a) a nullity.

Id. at 120-21. Although if we were writing on a clean slate, we might have been inclined toward a different result, the instant factual situation appears factually indistinguishable from that in Neal and we feel therefore bound by the Second Circuit's ruling that the exhaustion requirement is applicable in these circumstances.

The procedure for filing an inmate grievance is detailed in N.Y. COMP. CODES R. & REGS. tit. 7, ยง 701.7 et seq., ...

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