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