appointment of counsel to address, inter alia, "total exhaustion" rule); see Nelson, 2002 WL 31075804 at *5 (collecting cases). Some recent decisions support defendants' position. Law v. Bergamini, No. 01 Civ. 463(LEK)(DEP), 2003 WL 133272, *1 (N.D.N.Y. Jan. 14, 2003) (finding that the wording of the statute mandates dismissal of all claims where some are unexhausted); Vidal v. Gorr, No. 02 Civ. 5554(LAK), 2003 WL 43354 (S.D.N.Y. Jan. 6, 2003) (same); Saunders v. Goord, No. 98 Civ. 8501(JGK), 2002 WL 1751341 (S.D.N.Y. July 29, 2002) (same).
Other recent decisions have come to the opposite conclusion. Dimick v. Baruffo, No. 02 Civ. 2151(LMM), 2003 WL 660826, *5 (S.D.N.Y. Feb. 28, 2003) (allowing exhausted claims to be severed from unexhausted claims, noting that "Congress did not intend the PLRA to be a minefield" for imprisoned litigants and that, where a court may "easily sever unexhausted claims, leaving a possibly valid suit, it should do so"); Nelson, 2002 WL 31075804, at *5 (addressing merits of exhausted claims while dismissing unexhausted claims without prejudice).
In the circumstances of this case, a requirement of "total" or "complete" exhaustion does not make sense. The case was filed in 1999, and the exhaustion issue was not raised until several years into the litigation. Discovery is complete and the summary judgment motion is before the Court. At least one of the exhausted claims — denial of medical care — can easily be severed. Accordingly, I consider the exhausted claim against the medical defendants. At this time, I decline to consider the remaining exhausted claim against Nagy, however, both because the issues have not been briefed and the claim is related to other, unexhausted claims that are dismissed without prejudice.
B. The Merits
Two claims are exhausted: the claims against the medical defendants and the retaliation claim against Nagy based on the 1999 proceedings.
1. The Medical Defendants
Rivera alleges that the medical defendants' failure to treat the severe pain, swelling, migraine headaches, and other TMJ symptoms he suffered after dental surgery constituted deliberate indifference to his medical needs in violation of the Eighth Amendment.
Defendants do not dispute that Rivera satisfies the first prong of the deliberate indifference standard. (Def. Mem. at 8 ("defendants do not dispute that plaintiff's alleged ailments in his complaint . . . constitute a sufficiently `serious medical need'")). Therefore, the only issue remaining is whether defendants knew of and disregarded an excessive risk to Rivera's health.
a. Defendant Frattellone
The parties dispute whether Rivera consented to the surgery of February 19, 1997. Rivera asserts that Frattellone was scheduled to extract a tooth and instead performed a different procedure. Defendants assert that Rivera himself informed Frattellone that the tooth had already been extracted and agreed to an excision of tissue instead. Assuming that Frattellone performed the excision despite informing Rivera that a tooth was to be extracted, no reasonable jury could find that Frattellone's choice of treatment created an excessive risk to Rivera's health.
I assume, for purposes of this motion, that Frattellone's conduct was negligent and that, indeed, he committed medical malpractice. (Rivera Aff. ¶ 15 (alleging that his "infection was caused by the negligent acts of Frattellone")). But negligence alone is not enough for an Eighth Amendment violation. Hathaway, 37 F.3d at 66 (noting "[d]eliberate indifference requires more than negligence"); see Chance, 143 F.3d at 703 (finding that malpractice may rise to an Eighth Amendment violation only where it "involves culpable recklessness, i.e., an act or failure to act by the prison doctor that evinces a `conscious disregard of a substantial risk to serious harm'" (citation omitted)); see also Estelle, 429 U.S. at 102, 105, 106, 97 S.Ct. 285 (finding that "[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner," and that the alleged conduct "must be repugnant to the conscience of mankind" or "incompatible with `the evolving standards of decency that mark the progress of a maturing society'" (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958))). No reasonable jury could conclude that Frattellone was deliberately indifferent to Rivera's needs in performing the procedure or that he consciously disregarded a substantial risk of serious harm to Rivera.
Frattellone consulted an x-ray prior to performing the procedure. (See Frattellone Aff. ¶ 6; see also Pl. Resp. Ex. A-1 ¶ 4 (speculating that, if Frattellone did examine a pre-operative x-ray, he neglected to remove all infected tissue)). Frattellone then took a new x-ray before closing the incision to confirm, by comparison with the pre-operative x-ray, that he had removed the infected tissue. (Frattellone Aff. ¶ 8). Except for the fact that Rivera later contracted a severe infection, Rivera offers no evidence to suggest any particular problem with the procedure Frattellone performed. Indeed, Rivera's medical records reflect a history — even before the procedure and as far back as 1993 — of infection in his left cheek and left jaw. (AHR 12/6/93 & 2/14/94; AHR 12/22/94 & 1/5/95).
Nor does Frattellone's choice of procedure give rise to an Eighth Amendment violation by itself. "It is well-established that mere disagreement over the proper treatment does not create a constitutional claim. So long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment violation." Chance, 143 F.3d at 703.
Hence, summary judgment is granted in favor of defendants dismissing the Eighth Amendment claim against Frattellone. To the extent Rivera has a medical malpractice claim against Frattellone, he must pursue whatever state court remedies are available to him.
b. The Remaining Medical Defendants
As to the remaining medical defendants, no reasonable jury could conclude on the record before the Court that these defendants knew of and disregarded an excessive risk to Rivera's health.
The undisputed evidence shows that Rivera was frequently examined and treated for various conditions by a total of 21 different doctors. Rivera was sent to several specialists as well as three outside facilities. He received pain medication on a regular basis. He acknowledges that Green Haven medical staff listened to his complaints, provided him with medical care, and routinely tested him for various ailments. Of course, Rivera was sometimes turned away and on occasion the medical defendants refused to see or treat him, but this was usually because they believed his issues were related to his dental problems and they felt he should be referred for dental treatment. In the totality of the circumstances, no reasonable jury could find that these refusals or delays resulted in a constitutional deprivation. Rodriguez v. Mercado, No. 00 Civ. 8858(JSR)(FM), 2002 WL 1997885, at *9 (S.D.N.Y. Aug. 28, 2002) (noting that "[a] delay in treatment does not automatically indicate a violation of a prisoner's Eighth Amendment rights"); Amaker v. Coombe, No. 96 Civ. 1622(JGK), 2002 WL 523388, at *8 (S.D.N.Y. Mar. 29, 2002) (finding that an actionable "delay reflects deliberate indifference to a serious risk of health or safety, to a life-threatening or fast-degenerating condition or to some other condition of extreme pain that might be alleviated through reasonably prompt treatment"). Indeed, here Rivera's condition was intractable and difficult to treat.
In addition, Rivera refused medical treatment on more than one occasion. Evidence that a plaintiff has refused medical care has been found to "effectively rebut[ ] . . . claim[s] of deliberate indifference to serious medical needs." Nelson, 2002 WL 31075804, at *16; see, e.g., Brown v. Selwin, 98 Civ. 3008(RMB), 1999 WL 756404 at *6-7 (S.D.N.Y. Sept. 24, 1999) (granting summary judgment to defendants where plaintiff's medical condition resulted from his refusal to allow doctors to remove stent); cf. Ruffin v. Deperio, 97 F. Supp.2d 346, 355 (W.D.N.Y. 2000) (denying plaintiff's motion for summary judgment because defendants raised issue of material fact regarding plaintiff's noncompliance with medical regime).
Accordingly, no reasonable jury could conclude that the medical defendants were deliberately indifferent to Rivera's medical needs. Summary judgment is therefore granted dismissing the claims against them.
2. The 1999 Retaliation Claim Against Nagy
Rivera alleges that, in retaliation for his filing of this lawsuit with Nagy as a defendant, Nagy deliberately adjourned a disciplinary hearing in July 1999 to continue Rivera's detention in pre-hearing keeplock confinement for two days longer than generally permitted under the regulations. Rivera alleges that Nagy then conducted the hearing in a biased manner, preventing Rivera from presenting his defense. At the hearing, Rivera called, as witnesses, two corrections officers who testified that they did not see Rivera engaging in the alleged wrongful conduct. (Am. Compl. ¶¶ 102, 106). Nagy subsequently found Rivera guilty of two of the four charges listed in the misbehavior report, those of creating a disturbance and harassment. (Rivera Supp. Aff. Ex. E (Disciplinary Hearing Disposition)). Rivera was sentenced to 30 days confinement with loss of privileges. (Am.Compl. ¶ 106).
Defendants have not moved for summary judgment on the merits of this claim, as they have relied exclusively on the exhaustion argument. Rivera's conduct — the filing of this lawsuit — was protected by the First and Fourteenth Amendments. As the authorities discussed above make clear, a reasonable jury could find that a sentence of 30 days confinement with a loss of privileges was more than de minimis. It is not clear, however, whether Rivera has presented sufficient evidence to raise a question of fact as to whether Nagy retaliated against him for bringing this lawsuit. Because the defendants relied solely on nonexhaustion, Rivera has not been called upon to submit evidence to support this claim, and the issue is not ripe for summary judgment on the merits.
Nonetheless, the motion for summary judgment must be granted, for this claim — unlike those against the medical defendants — is not "easily sever[able]" from Rivera's other unexhausted excessive force and retaliation claims. Dimick, 2003 WL 660826 at *5. The claim is dismissed without prejudice to refiling after Rivera concludes his efforts to exhaust these related claims.
C. Qualified Immunity
I do not address the issue of defendants' qualified immunity defense as the issue is moot as to the claims against the medical defendants and it is premature as to the other claims.
In sum, the motion for summary judgment is granted as follows:
1. Rivera's claims against the medical defendants are dismissed, with prejudice, on the merits;
2. Rivera's excessive force claim against Kelly, Belton, and Brady is dismissed without prejudice for failure to exhaust;
3. Rivera's retaliation claim against Meyer is dismissed without prejudice for failure to exhaust;
4. Rivera's retaliation claim against Nagy based on the 1997 proceedings is dismissed without prejudice for failure to exhaust; and
5. Rivera's retaliation claim against Nagy based on the 1999 proceedings is exhausted; however, because the claim overlaps the unexhausted claim alleging retaliation by Nagy against Rivera in the 1997 disciplinary proceeding, this claim is also dismissed without prejudice to refiling after Rivera's exhausts his related claims.
If Rivera wishes to proceed with the unexhausted claims, he must file grievances with DOCS within 14 days after receipt (by his counsel) of this opinion. If he does so and DOCS refuses to consider the grievances on the merits, Rivera may return to this Court to argue that he is entitled to present his claims to this Court on the merits because he has exhausted all available administrative remedies. If he succeeds on that argument, he will be permitted to pursue his claims on the merits in this Court.
If Rivera elects not to pursue the unexhausted claims, his counsel shall advise the Court and he will be permitted to proceed with the retaliation claim against Nagy based on the 1999 proceedings.
The Clerk of the Court shall enter judgment accordingly.