Cole was transferred to Otisville in November 1995. He was incarcerated
at Otisville from November 1995 to January 15, 1997. During his stay, he
visited the Otisville Medical Center on numerous occasions. He saw a
nurse on five occasions, on November 14, 1995; January 5, 1996; April
14, 1996; October 31, 1996; and December 13, 1996. Cole saw Miraflor on
three occasions, on November 29, 1995; January 17, 1996; and November
14, 1996. He also had an appointment with another doctor, Dr. Robert
Sarreck, on May 3, 1996.
The parties do not agree as to what occurred during each visit with the
defendant, Miraflor. Cole claims that on each occasion, he requested a
permit to sleep in a lower bunk to ease his back pain, and Miraflor
refused these requests each time.
Miraflor claims that each visit consisted of her prescribing medication
to ease the pain and that Cole never asked for a lower bunk permit.
The New York Department of Corrections provides an administrative
grievance system. Cole has not pursued these administrative remedies in
light of his alleged dissatisfaction with Miraflor's actions.
In October 1997, Cole initiated this action with the pro se filing of a
complaint against defendants Superintendent Christopher Artuz, Medical
Director Norman Selwin, Green Haven Correctional Facility, and Otisville
Defendants filed a motion to dismiss pursuant to Fed.R.Civ.P. 12
(b)(1) and 12(b)(6) on April 29, 1999.
On September 3, 1999, Nixon Peabody, LLP, filed notice of appearance
and has been acting as counsel for Cole in this action.
On November 2, 1999, this Court denied the defendant's motion to
dismiss and granted Cole twenty days to file an amended complaint. Cole
filed an amended complaint on December 14, 1999.
On January 6, 2000, defendants filed a motion to dismiss the
complaint. On June 12, 2000, the defendants' motion to dismiss the
complaint was granted with respect to Selwin and Artuz, but denied with
respect to Jane Doe.
On September 25, 2000, Jane Doe (now identified as Miraflor), filed a
motion to dismiss the second amended complaint on statute of limitation
grounds. Cole requested permission to file an amended complaint. This
Court granted Cole's motion to file an amended complaint on February 19,
2001. Cole filed his amended complaint on March 2, 2001. The instant
motion for summary judgment was marked submitted on January 30, 2002.
I. Summary Judgment Standards
Rule 56(e) of the Federal Rules of Civil Procedure provides that a
court shall grant a motion for summary judgment "if the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with affidavits . . . show that there is no genuine issue as to material
fact and that the moving party is entitled to a judgment as a matter of
law." Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317 (1986);
Silver v. City Univ., 947 F.2d 1021, 1022 (2d Cir. 1991). "The party
seeking summary judgment bears the burden of establishing that no genuine
issue of material fact exists and that the undisputed facts establish her
right to judgment as a matter of law." Rodriguez v. City of New York,
72 F.3d 1051, 1060-61 (2d Cir. 1995). In determining whether a genuine
issue of material fact exists, a court must resolve all ambiguities and
draw all reasonable inferences against the moving party. Matsushita
Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986);
Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d Cir. 2002).
II. Failure to Exhaust Administrative Remedies
The Prison Litigation Reform Act of 1996 ("PLRA"),
42 U.S.C. § 1997e(a) states that:
No action shall be brought with respect to prison
conditions under section 1983 . . . or any other federal
law . . . by a prisoner . . . until such administrative
remedies as are available are exhausted.
Complaints filed under § 1983 are to be dismissed if prisoners have
failed to exhaust available administrative remedies. Booth v. Churner,