tissue graft did not become available and in August 2001 Dr. Holder reported that it might not become available for up to twelve months and ordered more physical therapy in the interim. Dr. Holder also twice recommended soft boots for the Achilles tendon scars, but these were denied by Dr. Mamis.
Sulton had the knee surgery on September 12, 2002.
Dr. Wright adopted the CPS utilization review mechanism for approving specialist consultation, but has since abandoned the use of outside vendors for review and is responsible for overseeing the system which coordinates medical care for transferring inmates. The Complaint does not allege that Dr. Wright had any personal involvement or knowledge of Sulton's medical treatment.
On August 21, 2000, Sulton filed inmate grievance complaint no. WDE014977-00, while at Wende Correctional Facility, alleging that the medical staff at that facility continued to send him to physical therapy which was not proper treatment for torn ligaments. He asked to receive proper care. On September 13, 2000, Wende's superintendent granted the grievance to the extent that Sulton had been referred to an outside specialist. Sulton appealed to the Central Office Review Committee ("CORC"). On October 25, 2000, CORC sustained the superintendent's decision, noting that Sulton had received an MRI in June 2000 and saw the orthopedist in September and October of that year.
On January 12, 2001, Sulton filed grievance number GH45947-01 at Green Haven, complaining about being transferred to Green Haven while his knee surgery had been pending at Wende, although he had requested to be closer to New York City. Sulton's grievance was affirmed by the superintendent to the extent that Sulton had requested the transfer and had been evaluated and received treatment for his condition since arriving at Green Haven. Sulton appealed to CORC which sustained the superintendent on March 28, 2001. CORC requested notification as to when the operation was performed, but on April 4, 2001, Green Haven reported that the operation had been delayed because operating room time was unavailable and the specialist believed Sulton's condition was not urgent and the surgery was elective.
The Standard Of Review
In considering a motion to dismiss pursuant to Rule 12(b)(6), the court should construe the complaint liberally, "accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor." Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (citing Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001)). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995) (quoting Scheuer v. Rhodes, 416 U.S. 232, 235-236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). Dismissal is only appropriate when "it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him or her to relief." Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000).
Admissions in earlier complaints remain binding when a plaintiff files subsequent pleadings. See Andrews v. Metro N.C.R. Co., 882 F.2d 705, 707 (2d Cir. 1989). As such, the Court may consider them on a motion to dismiss under Rule 12(b)(6). See Willsea v. Theis, No. 98 Civ. 6773, 1999 WL 595629, *4,1999 U.S. Dist. LEXIS 22471, at *11 (S.D.N.Y. Aug. 5, 1999).
The Court may consider other documents outside the four corners of the complaint as well, regardless of whether physically attached, when they are integral to the complaint and the pleader has notice of them or refers to them. Schnall v. Marine Midland Bank, 225 F.3d 263, 266 (2d Cir. 2000); Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001). The Court need not accept as true allegations contradicted by such documents. Barnum v. Millbrook Care Ltd. P'ship, 850 F. Supp. 1227, 1232-33 (S.D.N.Y. 1994). Because the exhaustion issue is an integral part of a prisoner's claim, the Court may refer to documents outside of the complaint on a 12(b)(6) motion in determining whether a plaintiff exhausted administrative remedies. Martinez v. Williams, 186 F. Supp.2d 353, 355 (S.D.N.Y. 2002); Abney v. McGinnis, No. 01 Civ. 8444, 2002 WL 1461491, **2-3, 2002 U.S. Dist. LEXIS 12180, at *6-7 (S.D.N.Y. July 2, 2002). In Benitez v. Straley, No. 01 Civ. 0181, 2002 WL 31093608, *2, 2002 U.S. Dist. LEXIS 17519, at *5 (S.D.N.Y. Sept. 17, 2002), the court held that failure to exhaust deprives it of jurisdiction so that the issue should be addressed under Fed.R.Civ.P. 12(b)(1). An inmate's claim is also subject to review under 28 U.S.C. § 1915A.
General Principles Of Exhaustion
As amended by the Prison Litigation Reform Act of 1995 ("PLRA"), 42 U.S.C. § 1997e(a) directs that prisoners may not bring federal actions involving prison conditions "until such administrative remedies as are available are exhausted." "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life . . ." Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). The PLRA's exhaustion provision is such a mandatory requirement. See Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001). "Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit." Porter, 534 U.S. at 524, 122 S.Ct. 983. "[W]e will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise." Booth v. Churner, 532 U.S. 731, 741 n. 6, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001).
"[T]he exhaustion requirement is not satisfied until the administrative process has reached a final result." Mendez v. Artuz, No. 01 Civ. 4157, 2002 WL 313796, **1-2, 2002 U.S. Dist. LEXIS 3263, at *4 (S.D.N.Y. Feb. 26, 2002). "Inmates must therefore exhaust all administrative remedies, at all levels of appeal, in order for their claims to survive a motion to dismiss." Abney, 2002 WL 1461491, *3, 2002 U.S. Dist. LEXIS 12180, at *8 (citing Hemphill v. New York, 198 F. Supp.2d 546, 548 (S.D.N.Y. 2002)).
Hernandez v. Greiner, No. 99 Civ. 4601, 2000 WL 520639, *2, 2000 U.S. Dist. LEXIS 5583, at *6 (S.D.N.Y. May 1, 2000), has described the Inmate Grievance Program ("IGP") as follows:
Under the IGP's three-step review process, an
inmate's grievance is first investigated and reviewed
by a committee of inmates and DOCS employees; the
committee's decision is then subject to review by the
correction facility's Superintendent; and finally, a
prisoner can appeal the Superintendent's decision
itself to the Central Office Review Committee
("CORC") for a final administrative determination. 7
N.Y.C.R.R. § 701.7. Only upon such a final
determination is an inmate deemed to have exhausted
his administrative remedies. See Beeson v. Fishkill
Corr. Facility, 28 F. Supp.2d 884, 887-89 (S.D.N.Y.
1998) (citing cases).