The opinion of the court was delivered by: Denny Chin, District Judge.
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).
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
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 Belton
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 keep-lock 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 ...