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LEE v. CARSON

March 24, 2004.

JULIUS LEE, Plaintiff
v.
JOYCE CARSON, et al., Defendants



The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District

DECISION AND ORDER

Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), commenced this action pro se under 42 U.S.C. § 1983 on April 4, 2002 against various DOCS employees who provided medical services to plaintiff at the Five Points Correctional Facility ("FPCF"). Plaintiff claims that Physician's Assistant Mark Frederick, Administrative Nurse Joyce Carson, and Nurse Kimberly Kuhlman violated his Eighth Amendment rights through deliberate indifference to his serious medical needs in the summer of 2001.

Joyce Carson now moves for summary judgment on the ground that plaintiff has failed to exhaust his administrative remedies as to his claims against her, as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), and the Supreme Court's decision in Porter v. Nussle, 534 U.S. 516 (2002). (Dkt. #15). For the reasons set forth below, that motion is granted. Page 2

  PLAINTIFF'S ALLEGATIONS

  Plaintiff alleges that he was under defendants' care at FPCF from June through August 2001. On June 3, 2001, plaintiff was tested for tuberclulosis ("TB"). The test results were negative. Nevertheless, plaintiff was informed by, among others, Carson and PA Frederick, that he had a medical condition that "altered" the TB test results and therefore, pursuant to DOCS policy, he was required to take the medication. Plaintiff refused and was placed on "TB hold"(which meant he was deprived of all privileges, visitation, or phone use) on June 12, 2001, until he agreed to take the medication.

  On June 17, in order to regain his privileges and to be released from TB hold, plaintiff agreed to take the medication. Plaintiff also claims that Carson assured him that the FPCF medical staff would monitor his condition while he took the medication for possible adverse side effects. Plaintiff began taking the medication on June 18.

  Plaintiff claims that two days after he started taking the medicine, he began experiencing physical problems, including weight loss, difficulty urinating, dizziness, muscle weakness, chills, and headaches. Plaintiff alleges that he complained to various medical personnel, including PA Frederick and Carson, that he was experiencing these symptoms, but they "brushed off his concerns and told him that he just needed to get used to the medication. Blood samples were drawn on July 19 and August 2, but no other examinations or treatment was provided. PA Frederick discontinued the medication on August 1, 2001. Plaintiff alleges that, during the time he was on the TB medication, he lost approximately 48 pounds and began to experience a loss of movement in his right arm. Page 3

  On August 3, 2001, plaintiff woke to find that he had no vision in his left eye. He immediately requested emergency sick call. Thirty minutes later, at approximately 6:30 a.m., Nurse Kuhlman came to plaintiff's cell and spoke with plaintiff. Nurse Kuhlman stated that she would speak with the doctor. Plaintiff was not called to the medical unit until 1:30 p.m., at which point he was examined by PA Frederick. At this time, plaintiff still had no vision in his left eye and impaired vision in his right eye. PA Frederick ordered that plaintiff be taken immediately to the hospital, where he was diagnosed with severe anterior uveitis, an inflamation of the iris and ciliary body that is generally very painful and may lead to visual impairment or blindness. The Bantam Medical Dictionary (Laurence Urdang Associates, Ltd., Elizabeth A. Martin, ed., 1981). Plaintiff received treatment from the hospital over the next 25 days, but his follow-up care with the ophthalmology clinic was disrupted because he was transferred to Upstate and then Attica Correctional Facilities.

  Plaintiff commenced this action for damages against, among others, Carson claiming that she acted with deliberate indifference to his serious medical needs by "forcing" him to take the TB medication when he tested negative for the disease, by failing to respond to the physical problems concurrent with taking the medication, and ultimately, for plaintiff's loss of vision, which he claims is related to the TB medication.*fn1 Plaintiff seeks monetary damages.

  DISCUSSION

  Section 1997e(a) provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any Page 4 jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." New York State regulations provide for a three-step administrative review process. See, 7 N.Y.C.R.R. § 701.7. In general, it is only after exhausting all three levels of the administrative procedures that a prisoner may seek relief pursuant to 42 U.S.C. § 1983 in federal court. Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001); Peoples v. Beldock, 212 F. Supp.2d 141, 142 (W.D.N.Y. 2002). Nevertheless, the Second Circuit has held that the PLRA's exhaustion requirement is not jurisdictional in nature, and is, therefore, subject to equitable doctrines such as tolling, estoppel and waiver. Richardson v. Goord, 347 F.3d 431, 434 (2d Cir. 2003) (per curiam).

  Carson argues that the claims against her should be dismissed because plaintiff never filed a grievance with DOCS officials concerning the allegations he asserts against her in this lawsuit. Plaintiff does not dispute that he did not file a written grievance against Carson in 2001 specifically claiming that she forced him to take the TB medication despite a negative test result, or that she ignored his complaints of side effects from the medication. Instead, he offers several reasons why the failure to file a grievance should not result in dismissal of the claims against Carson.

  I find that none of these reasons are sufficient to raise an issue of fact regarding whether plaintiff exhausted his administrative remedies or otherwise satisfied the exhaustion requirement. Further, plaintiff has failed to show that circumstances warrant any equitable relief.

  First, plaintiff claims that he could not file a grievance against Carson in June, July, or August 2001 because he was not aware of the effects of the medication until August or September 2001. Therefore, he did not know until that time whether she had done anything wrong. Plaintiff claims that it would have been "inappropriate" for him to file a grievance against Carson at a time when she was telling him that there was nothing wrong with him and that he simply needed to get Page 5 used to the medication. Further, he claims he is not a doctor and did not understand why he was experiencing the symptoms. He states he did not want to file a grievance "drawn on inferences of ...


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