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