The opinion of the court was delivered by: Denny Chin, United States District Judge.
Plaintiff Feliberto Rivera, Jr. brings this prisoner civil rights action pursuant to 42 U.S.C. § 1983, alleging that various officials and employees of the New York State Department of Correctional Services ("DOCS") violated his rights under the First, Eighth, and Fourteenth Amendments. Rivera's claims arise from a prison dental procedure performed in 1997. He claims that after the procedure, various defendants exhibited deliberate indifference to his worsening physical condition and medical needs, while other defendants retaliated against him because he complained about his medical care.
Defendants move for summary judgment based upon (1) Rivera's failure to exhaust administrative remedies; (2) Rivera's failure to raise a material issue of fact on the merits; and (3) qualified immunity. For the reasons that follow, the motion is granted and the complaint is dismissed.
Rivera's claims against the defendants flow from incidents occurring during two different time periods while he was incarcerated at Green Haven Correctional Facility ("Green Haven"), from April 1996 to December 1997 and from April to July 1999. Construed in the light most favorable to Rivera, the facts are as follows:
1. Claims Against Medical Defendants
Rivera reported to sick call complaining of pain in his mouth on April 30, 1996. (Rivera Aff. ¶ 3; Stolfi Aff. ¶ 3(a)). Dr. Kerschenbaum diagnosed an impacted wisdom tooth and told Rivera that the tooth would have to be extracted. (Rivera Aff. ¶ 3). Rivera was soon transferred to another correctional facility and remained there for the next seven months. (Rivera Aff. ¶¶ 4-5). When he was transferred back to Green Haven, he was examined again in January 1997 by Dr. Kerschenbaum, who recommended extraction of the impacted tooth. (Rivera Aff. ¶ 6).
At a consultation with Dr. Frattellone, an oral surgeon, on February 19, 1997, Rivera consented to the removal of his wisdom tooth, and underwent surgery believing that his tooth was being extracted. (Rivera Aff. ¶¶ 7-11). Later, however, Rivera discovered that Dr. Frattellone did not remove his tooth, but only removed a piece of tissue from his mouth; Rivera never consented to this procedure. (See Rivera Aff. ¶ 8).*fn1
Rivera visited sick call four times during the three days after the surgery, complaining of facial swelling and increasing pain. (Rivera Aff. ¶¶ 13-14; Odessky Decl. Ex. A (Dental Treatment Record ("DTR") 2/21/97); id. (Ambulatory Health Record ("AHR") 2/22/97)). Rivera was given prescription pain medication and antibiotics, and told to use hot compresses on his face. (Rivera Aff. ¶¶ 13-14; DTR 2/21/97; AHR 2/22/97). When the swelling and pain did not abate, Rivera was sent to the emergency room at St. Francis Medical Center ("St. Francis"). (Rivera Aff. ¶ 14; DTR 2/24/97). On February 24, 1997, Rivera underwent an "incision and drainage" procedure at St. Francis. (DTR 2/25/97). He remained at St. Francis for six days before he was discharged to the Green Haven infirmary on March 1, 1997. (Rivera Aff. ¶ 16; DTR 3/3/97). Rivera was discharged from the infirmary on March 7, 1997. (AHR 3/7/97).
Rivera's pain and facial swelling continued over the next ten months, and during this period he also suffered from migraine headaches, infections, severe burning in his eyes, impaired vision, and partial loss of hearing. On May 2, 1997, he was diagnosed with temporomandibular disorder ("TMJ"), a condition that affects the temporomandibular (or jaw) joint. (P1. Resp. Ex. E-1 (5/2/97 Consultant Report)). Rivera claims that this medical condition originated from Dr. Frattellone's dental surgery on February 19. (Rivera Aff. ¶ 15). Rivera further states that his physical maladies were exacerbated by the failure of various defendants on the Green Haven medical staff (collectively, the "medical defendants") to provide proper medical care after the two operations.*fn2 Rivera contends that the medical defendants and other Green Haven medical employees ignored his repeated pleas for medical care and refused to provide him with the treatment he required. (Id.).
For example, Rivera states that on March 3, 1997, days after he returned to the Green Haven infirmary from St. Francis, he asked Dr. Selwin to change his intravenous ("IV") line because it was causing pain and bruising; the doctors at St. Francis had told Rivera to have his line changed if he experienced such symptoms. (Rivera Aff. ¶ 16). Selwin refused to change the IV because Green Haven did not have any replacement IV lines, and Rivera ultimately pulled out the line himself. (Id.).*fn3 Moreover, on a number of occasions Rivera went to sick call complaining of various symptoms but the medical defendants refused to see or treat him.*fn4
As the undisputed evidence shows, however, the medical defendants' refusals to see or treat Rivera reflected their policy to refer Rivera to the Dental Clinic for dental-related problems and on most of these occasions, one of the medical defendants assessed Rivera's condition and determined that further medical treatment was not necessary.*fn5 On other occasions, medication could not be provided to Rivera without more evaluation or without consulting the prescribing physician. (Selwin Aff. ¶ 7; Silver Aff. ¶ 7(f)).
The medical records show, and a reasonable jury could only find, that Rivera received extensive medical care from the medical defendants and the rest of Green Haven's medical staff. In 1997, Rivera was examined at least 30 times by 21 different doctors, including two oral surgeons, at least two dentists, a radiologist, an ophthalmologist, an audiologist, and an ear, nose, and throat specialist. Rivera was sent to three outside facilities — St. Francis, Mid-Hudson Radiology, and St. Agnes Hospital — for medical treatment. Finally, Rivera concedes that on numerous visits to sick-call, the medical defendants and other staff members listened to his complaints and provided him with medical treatment, including prescribing medications for his pain, infections, and eye and ear problems, and performing x-rays and an HIV test. Moreover, Rivera requested and received pain medication almost continuously throughout 1997.*fn6
When the medical defendants refused to provide Rivera with his preferred pain medication or treatment, the medical defendants based such refusals on their own evaluations of Rivera, or relied upon the evaluations of other providers.*fn7 On several of these occasions, Rivera refused some kind of treatment. (E.g., AHR 3/17/97 (refused Motrin); 6/12/97 (refused Motrin); 7/30/97 (refused Tylenol); DTR 9/3/97 & 9/4/97 (taken to dental clinic as part of grievance process but refused any treatment); AHR 9/10/97 (Rivera walked out)).
2. Claims Against Correctional Officers
Rivera contends that defendants Kelly, Brady, Belton, Meyer, and Nagy, all correctional officers (the "correctional defendants"), retaliated and used excessive force against him because he complained about his medical care.
a. retaliation and Excessive Force Claims Against Kelly, Brady, and
Rivera alleges that three of the correctional defendants physically assaulted him in retaliation for the complaints he filed. Rivera states that he was removed from the clinic by Kelly, Brady, Belton, and other officers on September 11, 1997. As Rivera was walking, Kelly told him that he was "sick of [Rivera writing] complaints" and that if Rivera turned around, Kelly would "kick [his] ass." (Rivera Supp. Aff. Ex. A (9/11/97 Letter to Elijah Williams)). Kelly, Belton, and Brady then pinned Rivera against a wall, banging his face into the wall and twisting his arms behind him. (Rivera Aff. ¶ 56). Defendants do not specifically dispute these facts but assert that Rivera never exhausted administrative remedies by filing a grievance regarding the incident.
Rivera admits that he never filed a formal grievance, but asserts that he wrote to his therapist, Mr. Montero, the following week, detailing the alleged assault. (Rivera Supp. Aff. ¶ 2, 4). Rivera alleges that this letter was intercepted by Mental Health Unit Chief L. Klein, and forwarded to Artuz. (Id. ¶ 3). Rivera asserts that Kelly subsequently visited Rivera's cell on September 29, 1997, purportedly to investigate the matter. (Id. ¶ 4 & Ex. C (10/1/97 Letter to Deputy Sup't Schneider)).
b. retaliation Claim Against Meyer
Rivera alleges that, in April 1999, an officer told him that Meyer "was trying to influence [the other officer] to harass plaintiff." (Am. Comp. ¶ 92).*fn8 Later, Meyer allegedly told Rivera directly that "because of [his litigation, Rivera] wasn't going to last long in [Meyer's] block." (Rivera Supp. Aff. Ex. F (4/25/99 Letter)). Rivera also alleges that Meyer influenced other corrections officers to mislead him about his work assignment. As a result of his alleged misunderstanding, Rivera was issued a misbehavior report for being out of his cell without permission. (Id. (5/1/99 Letter)). He was sentenced at a subsequent disciplinary hearing to three days confinement. (Am. Compl. ¶ 97). Rivera sent letters about Meyer and the other officers to Superintendent Artuz and Commissioner Goord on April 25, 1999 and May 1, 1999. (Rivera Supp. Aff. Ex. F (4/25/99 Letter); id. (5/1/99 Letter)).
Within days, Artuz responded by sending Rivera several memoranda with the subject heading "Staff Harassment." Artuz replied that he had "forwarded [each] letter for action to Deputy Superintendent Schneider," and that Rivera would "be hearing from a staff member in the near future." (Id. (4/27/99 Artuz Memo); Id. (5/7/99 Artuz Memo)). Rivera next received a memorandum from Lt. Russett, dated July 19, 1999, responding to Rivera's allegations and concluding that "there is no sufficient evidence to substantiate your claims." (Id. (Russett Memo)). Finally, Rivera received correspondence from Lt. Albury, advising Rivera that his "allegations . . . could not be confirmed" and that the matter was "closed." (Id. (Albury Memo)). Albury advised Rivera that he "must utilize the appeal mechanism" with "regards to  disciplinary sanctions." (Id.).
c. retaliation Claims Against Nagy
In his amended complaint, Rivera asserts two retaliation claims against Nagy. First, he alleges that Nagy retaliated against him by lying at an August 1997 disciplinary hearing, causing Rivera to be found guilty and to be sentenced to 90 days confinement and 120 days loss of privileges. (Am. Compl. ¶¶ 63, 65). Rivera does not dispute that he did not file a grievance regarding this incident.
Second, Rivera also alleges that Nagy, already named as a defendant in the instant case, presided at a July 1999 disciplinary hearing over Rivera s objections. (Art. 78 Pet. ¶ 17). Rivera claims that Nagy adjourned the hearing so that he would remain confined to his cell as he had been since the filing of the underlying disciplinary report, resulting in confinement two days longer than that permitted by applicable regulations. (Id. ¶ 18; Am. Compl. ¶ 106). When Nagy reconvened the hearing, Rivera alleges that Nagy conducted the proceedings in a biased manner and intimidated Rivera when he presented his defense. (Art. 78 Pet. ¶ 18). Rivera was found guilty of two of the four charges in the misbehavior report and sentenced to 30 days keeplock and the loss of privileges. (Id. ¶ 15). Rivera appealed the outcome of the disciplinary hearing (Rivera Supp. Aff. Ex. E (Bliden Memo)) and filed an Article 78 petition asserting a denial of due process as a result of Nagy's allegedly retaliatory conduct. (Art. 78 Pet. ¶ 39). Rivera's disciplinary record for this incident was later expunged because the hearing tape had been destroyed. (Rivera Supp. Aff. Ex. E (Letter from Hon. James Pagones)).
Defendants do not dispute these facts, but assert that Rivera s failure to file a formal grievance for Nagy's alleged conduct bars his claims.
Rivera filed this action pro se on March 5, 1999 and filed an amended complaint on July 22, 1999. Defendants moved to dismiss, and the motion was granted in part and denied in part. Rivera v. Goord, 119 F. Supp.2d 327 (S.D.N.Y. 2000).
After filing this lawsuit, Rivera submitted his complaint in this case to DOCS as a grievance. By memorandum dated September 17, 2001, DOCS denied the grievance on the following grounds:
[A]n inmate must submit a complaint within 14 calendar
days of an alleged occurrence. Exceptions to this time
limit may be approved by the IGP Supervisor based on
mitigating circumstances. The act of solely taking a
case to court is not mitigating circumstances. As your
law suit makes allegations dating back to 1996, this
law suit cannot be processed as a grievance.
(Rivera Supp. Aff. Ex. G).
Rivera appealed by letter dated October 15, 2001 to the DOCS Central Office Review Committee. (Id.). By letter dated November 5, 2001, the director of the Inmate Grievance Program ("IGP") denied the appeal on the grounds that Rivera had not provided "any mitigating circumstances for an exception to the time limits for filing a grievance or appeals." (Id.).
In the meantime, Rivera obtained counsel in this case and the parties engaged in discovery. This motion followed.
I discuss the law applicable to (a) summary judgment motions, (b) the administrative exhaustion of prisoner claims, and (c) the merits of claims under § 1983, in turn.
A. Summary Judgment Standard
Summary judgment will be granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986). Accordingly, the Court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Summary judgment is inappropriate if, resolving all ambiguities and drawing all inferences against the moving party, there exists a dispute about a material fact "such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248; see Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991). A factual issue is genuine if it can reasonably be resolved in favor of either party. Anderson, 477 U.S. at 250. A fact is material if it can affect the outcome of the action based on the governing law. Id. at 248.
The party seeking summary judgment must demonstrate the absence of genuine issues of material fact, and then the nonmoving party must set forth facts proving that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 321-24 (1986). To defeat a motion for summary judgment, the nonmoving party must do more than raise "some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586; see Gonzalez v. Rite Aid of N.Y., Inc., 199 F. Supp.2d 122, 129 (S.D.N.Y. 2002). Rather, the nonmoving party must present significant probative evidence tending to support the complaint. First Nat'l Bank of Ariz. v. Cities Servs. Co., 391 U.S. 253, 289-90 (1968). There is no issue for trial unless there exists sufficient evidence favoring the nonmoving party to support a jury verdict for that party. Anderson, 477 U.S. at 249-50. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. (citations omitted). The plaintiff "must provide the Court with `some basis to believe that his `version of relevant events is not ...