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February 6, 2003


The opinion of the court was delivered by: Charles J. Siragusa, United States District Judge



This prisoner civil rights case is before the Court on defendants' motion for summary judgment. Specifically, defendants' are moving to dismiss plaintiff's amended complaint in its entirety on the basis that plaintiff has failed to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a). See Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983 (2002). Alternatively, defendant Tan is moving for summary judgment on counts one and two of the amended complaint, requesting that these causes of action be dismissed on the merits. For the reasons to be stated below, defendants' motion for summary judgment based upon failure to exhaust remedies is denied, but defendant Tan's motion for summary judgment as to counts one and two is granted.


The Decision and Order of this Court filed November 8, 2001, dismissed four of the eight causes of action stated in the proposed Amended Complaint, which was subsequently filed on December 13, 2001. Of the remaining causes of action, which are the subject of defendants' pending application, the first two pertain only to Dr. Tan and are: (1) deliberate indifference to plaintiff's serious medical needs by Dr. Tan's alleged failure to respond adequately and appropriately to plaintiff's complaints of problems with his medications and medical treatments between August 8, 1997 and May 24, 1998, in violation of plaintiff's Eighth Amendment rights; and (2) deliberate indifference to plaintiff's serious medical needs by Dr. Tan's alleged failure to properly treat plaintiff's hypertension between July 30, 1997 and May 24, 1998, in violation of plaintiff's Eighth Amendment rights. The third cause of action is asserted against defendants Dr. Tan, Dr. Cetin*fn1, Day, Havey, Bensley, Bouquin, Pracht, CPM*fn2, Jane Doe 1, Jane Doe 2 and West, and alleges they failed to ensure plaintiff was provided with some modicum of bedside care between May 27, 1998 and June 3, 1998 in violation of plaintiff's Eighth Amendment rights. The fourth cause of action is against Deputy Superintendent of Administration Mudra and Facility Health Services Director Cetin only and alleges they failed to remedy a constitutional deprivation of which they had notice, despite their administrative positions, specifically, the deliberate indifference to plaintiff's serious medical needs by*fn3 Dr. Tan, Day, Harvey, Bensley, Bouquin, Pracht, CPM, Jane Doe 1, Jane Doe 2, and West, between May 17, 1998 and June 3, 1998. This fourth cause of action uses the same language of deliberate indifference as the other causes of action, but does not specifically refer to the Eighth Amendment.


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.). That is, the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. See Amaker v. Foley, 274 F.3d 677 (2d Cir. 2001); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir. 1987) (en banc). Where the nonmoving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the nonmovant's burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

Once that burden has been met, the burden then shifts to the nonmoving party to demonstrate that, as to a material fact, a genuine issue exists. FED. R. CIV. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is "material" only if the fact has some affect on the outcome of the suit. Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether a genuine issue exists as to a material fact, the court must view underlying facts contained in affidavits, attached exhibits, and depositions in the light most favorable to the nonmoving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Moreover, the court must draw all reasonable inferences and resolve all ambiguities in favor of the nonmoving party. Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993); Anderson, 477 U.S. at 248-49; Doe v. Dep't of Pub. Safety ex rel. Lee, 271 F.3d 38, 47 (2d Cir. 2001); International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir. 1990). However, a summary judgment motion will not be defeated on the basis of conjecture or surmise or merely upon a "metaphysical doubt" concerning the facts. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)); Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir. 1986). Rather, evidentiary proof in admissible form is required. FED. R. CIV. P. 56(e). Furthermore, the party opposing summary judgment "may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City, Department of Corrections, 84 F.3d 614, 619 (2d Cir. 1996).


A. Exhaustion of Administrative Remedies

The Prison Litigation Reform Act of 1995 ("PLRA" or "Act"), as amended, 42 U.S.C. § 1997e(a), provides: "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." "[T]he PLRA's 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. at 532. In New York, the process generally requires the inmate to: (a) file a grievance with the Inmate Grievance Resolution Committee ("IGRC"); (b) seek review of the IGRC decision by the facility superintendent; and (c) appeal to the Central Office Review Committee ("CORC"). See 7 N.Y.C.R.R. § 701.7; Thomas v. Wright, No. CIV.9:99CV2071FJSGLS, 2002 WL 31309190 (N.D.N.Y. Oct. 11, 2002); Cruz v. Jordan, 80 F. Supp.2d 109, 117-18 (S.D.N.Y. 1999).

In the case at bar, plaintiff has alleged in his affidavit that he consulted numerous times with the Inmate Grievance Clerk, the inmate designated as the intake clerk for the IGRC, and was told each time that his medical complaints were not cognizable under the IGRC system and was advised to contact the medical staff directly. Preslar aff. (document # 51) at ¶¶ 36-37. In support, plaintiff has submitted affidavits from James McDaniel ("McDaniel") and Christopher Battee ("Battee").

Battee states in his affidavit that he was an inmate at Collins Correctional Facility during the period from July 1997 through July 1998 and that from July 15, 1997 until July 15, 1998, he was a member of the IGRC and Head Grievance Clerk at Collins Correctional Facility. He states, in particular, that, "[a]t Collins during the relevant period, the IGRC was not permitted to review medical records, and an inmate could not obtain review of his medical treatment or lack thereof via the grievance process." Battee aff. at ¶ 10 (emphasis in original). Further, he states that an inmate attempting to "file a grievance seeking review of or modification of his medical treatment or his mental health treatment would have been advised that the issue was not grievable via the Inmate Grievance Process." Id. at ¶ 16. Battee also recalled that plaintiff filed many grievances at Collins and that, "[s]ome of those grievances, which addressed his mental health medications and other medications, were not logged or filed pursuant to DOCS Directive 4040(III)(F)." Id. at ¶ 21.

McDaniel, in his affidavit, states that he was also an inmate at Collins during the same period and was a member of its IGRC. He stated that the IGRC at Collins did not retain copies of grievances informally resolved and that, "[w]ith respect to claims raised by inmates regarding their medical care, our (the IGRC's) typical practice in 1997-98 ...

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