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February 6, 2004.

WILLIAM M. MAZZUCA, Superintendent; THOMAS G. EAGEN, Director I.G.P.; JOHN/JANE DOE, C.P.S.; JOHN/JANE DOE, Div. of Health Svcs.; JOHN & JANE DOES, I.G.P.C.O.R.C. In their Individual and Official Capacities, Defendants

The opinion of the court was delivered by: BARBARA JONES, District Judge

Opinion and Order

Plaintiff pro se Russell Manley brings this action against Defendants, alleging violations of his federal constitutional rights 28 U.S.C. § 1983 Defendants have moved to dismiss this action For the reasons set forth below, Defendants' motion is DENIED


  On or about June 29, 1999, while confined at the Fishkill Correctional Facility, Plaintiff sustained a laceration on the thumb of his right hand and severed a nerve When he reported to the prison medical clinic, Plaintiff's thumb was stitched by Physician's Assistant Macomber, who did not realize that a nerve had been severed (Compl ¶ 6) At some later date, Plaintiff Page 2 was examined at the clinic by Dr. J. J. Francis, who referred plaintiff to a hand surgeon for a consultation. The hand surgeon examined Plaintiff, determined that Plaintiff had lost full movement of his right thumb, and recommended that surgery be performed to restore the lost movement. (Compl. ¶ 7).

  Dr. Francis reviewed the hand surgeon's report and recommended to the Facility Health Service Director that the surgery be performed. The Facility Health Service Director forwarded the consultation report to United Correctional Managed Care Inc., the facility's health care provider, who denied the request for Plaintiff's surgery.*fn1 (Compl. ¶ 8).

  After the recommendation for Plaintiff's surgery was denied, Plaintiff began experiencing pain in his thumb He repeatedly went to the prison clinic for medical attention, complaining of pain and restricted movement When he was unable to obtain relief from the prison clinic, Plaintiff filed a grievance complaint I.G.P. Supervisor Goidel responded to Plaintiff's grievance and advised him that the facility's request for surgery had been denied by the facility's health care provider Supervisor Goidel further advised Plaintiff that if he "disagree [d] with this decision," he should contact Dr. A Lang, Regional Medical Director at Arthurkill Correctional Facility Page 3 he wished to pursue a formal grievance. (Compl. ¶ 9).

  "Plaintiff pursued a formal grievance, and the Inmate Grievance Resolution Committee ("IRGC") submitted a recommendation stating: "We recommend grievant appeal CPS [healthcare provider] denial to Dr. A. Lang, Regional Medical Director at Arthur Kill C.F." (Compl. ¶ 10). Plaintiff appealed the IRGC response to Defendant Superintendent Mazzuca, who stated that he "concur[red] with the recommendation of the I.G.R.C." (Compl. ¶ 11).

  Plaintiff filed a further appeal with Defendant Thomas Eagen at the Inmate Grievance Program Central Office Review Committee ("CORC"). Defendant Eagen denied Plaintiff's grievance on January 31, 2001, stating in part:
CORC concurs with the Superintendent in that the surgical referral submitted by the facility for an Orthopedic appointment in March was denied by the health care provider. CORC notes that proper medications were ordered by the doctor. The grievant has been seen at sick call for complaints regarding pains in his left hand. However, there is no record that the grievant has made any complaints regarding pain in his right hand.
  (Compl. ¶ 12; Ex. 5). Plaintiff wrote to Dr. A. Lang on March 21, 2001, requesting a review of the health care provider's determination. He received no response. (Compl. ¶ 13). Page 4


  Defendants have moved to dismiss this action on the bases that (1) Plaintiff "ignored the proper avenue which could have awarded him the relief he now seeks in this Court"; (2) Plaintiff's Complaint does not alleged personal involvement on the part of the named Defendants. Defendants also move, in the alternative, to dismiss on the grounds that the named Defendants are entitled to qualified immunity.

 A. The "Proper Avenue" for Relief

  Defendants ask the Court to dismiss Plaintiff's complaint because Plaintiff "willingly chose the wrong avenue to address his complaint about his medical treatment, solely for the purpose of bringing this lawsuit." (Def. Mem. at 4-5). Defendants state that if Plaintiff had raised his complaints with Dr. Lang, "he could have received the treatment he now seeks here prior to filing this lawsuit, and this complaint would be moot." (Def. Mem. at 5). Defendants rely on 42 U.S.C. § 1997e(c) for their argument that the Court should dismiss Plaintiff's Complaint because of his "manipulative and duplicitous behavior." (Def. Mem. at 5).

  Plaintiff states that he pursued his grievance rather than simply contacting Dr. Lang because he believed that if he failed to file all necessary appeals, he would be considered to have abandoned his administrative remedies. Plaintiff was concerned Page 5 about pursuing available administrative remedies becuase he believed that he would have no ability to challenge Dr. Lang's finding if it were adverse to him. (Pl. Mem. at 1-3). Rather than using the grievance process in a manipulative fashion, Plaintiff claims that he was simply attempting to follow Department of Correction procedures. Moreover, after he exhausted his administrative remedies, Plaintiff sent a letter to Dr. Lang.

  Title 42 U.S.C. § 1997e(c) states, in relevant part, that a court shall dismiss a prison conditions case if the action "is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief." Because this is a motion to dismiss the complaint, the Court must accept all of Plaintiff's factual allegations as true and does not find them frivolous. Barnett v. Int'l Bus. Machines, 885 F. Supp. 581, 585 (S.D N.Y. 1995) Moreover, the Court accepts Plaintiff's explanation that he was not acting in a malicious ...

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