United States District Court, W.D. New York
March 24, 2004.
JULIUS LEE, Plaintiff
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.
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 inconclusive
evidence." It was only after he went blind and suffered from other side
effects after a month that he filed a grievance against certain medical
staff. Dkt. #20, ¶ 6.
This argument is insufficient to raise an issue of fact as to whether
he exhausted his administrative remedies against Carson. In his amended
complaint, plaintiff asserts that Carson was deliberately indifferent to
his serious medical needs by forcing him to take the TB medication and
then ignoring his complaints concerning the side effects of the
medication. Plaintiff knew as early as June 18 that he was taking the TB
medication under the threat of continued TB hold and even though he
tested negative for the disease. Further, as asserted in his complaint,
he knew as early as June 20 that he began experiencing side effects of
the medication, and knew as early as June 25, that the medical staff
allegedly was ignoring his complaints concerning the side effects of the
medication. It is also not clear why plaintiff could not have filed a
grievance once his condition deteriorated, requiring hospital care.
Thus, plaintiff had knowledge sufficient to file a timely grievance
against Carson regarding his claims.
Second, plaintiff claims that he did not grieve the issues against
Carson in June, July, or August 2001, because the Inmate Grievance Review
Committee ("IGRC") responded that medical decisions were not grievable
issues. Dkt. #4, p. 6. This contention, however, is belied by the record.
The statement from the IGRC to which plaintiff is referring was made by
the IGRC in September 2001 in its response to a grievance plaintiff filed
regarding the treatment he received by emergency sick call on August 3,
2001. On August 17, 2001, plaintiff filed a grievance ("Grievance 3124")
claiming that there was a substantial delay in treatment concerning the
condition of his eye. See Dkt.
#20, Ex. 7, Grievance FPT-3124-01. Grievance 3124 makes no mention
of any defendant by name, but instead refers to the nurse who responded
to sick call (Nurse Kuhlman) and the doctor who eventually treated him
and sent him to the emergency room (PA Frederick). Importantly, plaintiff
did not complain in this grievance that he was forced to take TB
medication against his will or that he was not treated for the side
effects that he experienced (weight loss, dizziness, headaches, etc.)
during the previous month when taking the medication.
On September 4, 2001, IGRC responded to Grievance 3124 stating that
"the medical decision must ultimately rest with the medical service staff
since they are trained and experienced in that area and are cognizant of
the resources available to them. The Grievant is further advised the IGRC
does not have the authority to assess and determine medical protocol."
The IGRC's response to plaintiff's grievance is dated September 4, 2001.
Plaintiff did not receive the IGRC's response until sometime after he had
been transferred to Upstate Correctional Facility on August 30, 2001.
Therefore, the IGRC's response to plaintiff that it did not have the
authority to assess and determine medical protocol in September 2001 does
not explain why he did not file a grievance against Carson in June, July,
or August 2001 based on the alleged forced medication and failure to
respond appropriately to his complaints regarding certain side effects.
Third, plaintiff argues that he exhausted his administrative remedies
against Carson through a "follow-up" grievance he filed in April 2003
concerning the FPCF's handling of Grievance 3124. However, the record
shows that this "follow-up" grievance ("Grievance 37283") did not address
the claims asserted in the complaint against Carson. Instead, Grievance
37283 asserted that IGRC at FPCF failed to properly process Grievance
3124 in a timely fashion and failed to inform him of his appeal rights
after he had been transferred to a different facility, thereby depriving
him of his right
to properly exhaust his administrative remedies with respect to the
claims raised in Grievance 3124. In Grievance 37283, plaintiff claimed
that he also was "grieving the original issue in 3124 pertaining to
medication and the response time to emergency sick call." Dkt. #20, Ex.
9, Grievance SS-37283-03. Plaintiff requested relief in the form of a
"full and fair opportunity" to exhaust his administrative remedies
concerning "the first issue in grievance number 3124-01, and the medical
people responsible for my injuries to pay the sum of 5 million dollars."
IGRC at Sing Sing Correctional Facility (where plaintiff was located
when he filed Grievance 37283) accepted the grievance on April 22, 2003,
stating that after an investigation by Inmate Grievance Program Director
Thomas Eagen, he advised FPCF to treat Grievance 3124 as an appeal after
transfer, and noted that it "should be expedited due to court dead line."
Dkt. #20, Ex. 10. The three-step administrative review process for
Grievance 3124 was then completed when CORC issued its final
determination on May 21, 2003. Dkt. #24, Ex. A. Because the actual
response by CORC to Grievance 3124 is not in the record, the final
determination of Grievance 3124 is unclear. Nevertheless, there is no
question that plaintiff exhausted his administrative remedies with
respect to the claims against Nurse Kuhlman and PA Frederick in
connection with the alleged delay in treatment by emergency sick call for
his vision loss. Despite the fact that FPCF IGRC seems to have mishandled
the original processing of Grievance 3124, that does not excuse
plaintiff's failure to file a grievance against Carson based on the
alleged forced medication of plaintiff and her failure to respond to his
complaints of physical side effects.
In Porter v. Nussle, the Supreme Court recognized that the purpose of
the PRLA was to afford correctional facilities the opportunity to address
prisoners' complaints internally and in the first instance, and take
whatever administrative action was necessary to address those
In addition, Congress sought to filter out frivolous claims and allow
more efficient adjudication of federal lawsuits filed by prisoners "by an
administrative record that clarifies the contours of the controversy."
Porter, 534 U.S. at 525. Here, the claims raised by plaintiff against
Carson were never addressed at the facility level in the first instance.
That plaintiff may have successfully grieved his claims against Nurse
Kuhlman and PA Frederick (which are different than those asserted against
Carson) is of no moment. See Brewer v. Jones, No. 02 Civ. 3570, 2004 WL
235269 (S.D.N.Y. Feb. 5, 2004) (plaintiff failed to exhaust
administrative remedies for claims of excessive force against certain
defendants even though he filed a grievance against one defendant based
on the use of force incident because the grievance did not contain
allegations against six other officers plaintiff later asserted were
involved); Luckerson v. Goord, No. 00 Civ. 9508, 2002 WL 1628550
(S.D.N.Y. Jul. 22, 2002) (plaintiff failed to exhaust administrative
remedies when grievance he filed did not set forth the full nature of the
allegations, claims, and remedies he sought to adjudicate in subsequent
Importantly, plaintiff does not argue, and the record does not show,
that the original investigation in 2001 conducted by the IGRC or the
follow-up investigation in 2003 conducted by FPCF. Supervisor and the
CORC in connection with Grievances 3124 and 37283 focused on the
allegations asserted against Carson. If DOCS's investigation had
addressed the issue of forced medication and failure to respond to
plaintiff's side effect complaints, then plaintiff's claims against Carson
likely would be considered exhausted even though neither grievance names
Carson specifically. However, that does not appear to be the case here.
Although the precise nature of the investigation conducted by DOCS in
connection with Grievances 3124 and 37283 are not set forth in the
record, the papers filed in support of Carson's
motion (including the sworn affidavits of FPCF IGP Supervisor Janice
Henrich and the New York State Attorney General's Office) clearly state
that Grievances 3124 and 37283 did not relate to the claims against
Carson and represent to the Court that plaintiff failed to exhaust his
administrative remedies as to those claims. Therefore, the outcomes of
Grievances 3124 and 37283 are not relevant to the issue of whether
plaintiff exhausted his administrative remedies as to the claims he now
asserts against Carson.
Fourth, plaintiff claims that he should be excused from filing a
written grievance against Carson because on some unspecified occasion he
told an unnamed Sergeant in the area where he was housed and an
unidentified escort officer (neither of whom plaintiff claims was an
immediate supervisor to Carson) that he was in fear for his life because
he was not being helped for his complaints regarding the side effects of
medication. Dkt. #20, ¶ 7. However, DOCS regulations make clear that
plaintiff cannot exhaust his administrative remedies in this manner. See 7
N.Y.C.R.R. § 701.7 (requiring plaintiff to file written complaint with
the IGRC within fourteen calendar days of occurrence); 7 N.Y.C.R.R. §
701.11 (outlining procedures for claims of employee harassment and
indicating that a claim could be made by reporting the employee
misconduct or harassment to the immediate supervisor of the employee).
Finally, plaintiff claims that I.G.R.C. Supervisor Henrich told him
that after he filed Grievance 3124 that "due to the multiple grievances
filed by you I will not go against my co-workers in your favor. In
addition, the incident that occurred is not a grievable issue." Dkt.
#20, ¶ 11. He does not argue how this alleged statement by Henrich
affected his ability to file a grievance against Carson for the claims
against her. In addition, Grievance 3124 did not relate to Carson, so
statement by Henrich concerning the claims raised by plaintiff in
Grievance 3124 is irrelevant to the issue of whether he exhausted his
administrative remedies as to the claims against Carson.
Even if plaintiff is attempting to argue that it would have been fufile
for him to file a grievance against Carson, that does not excuse his
failure to do so. If a statute mandates exhaustion of administrative
remedies, even a fufile administrative process must be utilized. Giano
v. Goord, 250 F.3d 146, 150-51 (2d Cir. 2001) (alleged ineffectiveness or
futility of pursuing administrative remedies does not excuse inmate from
obligation to exhaust his administrative remedies pursuant to the PLRA);
McNair v. Jones, No. 01 Civ. 3253, 2002 WL 31082948, at *8 (S.D.N.Y.
Sept. 18, 2002) (citing Booth v. Churner, 532 U.S. 731, 741 n. 6
(2001)). Therefore, whether plaintiff believed that his efforts to use
the grievance process would be fufile is of no consequence. See Berry v.
New York, No. 00 Civ. 2834, 2002 WL 31045943, at *7 (S.D.N.Y. June 11,
The explanations offered by plaintiff for his failure to pursue his
administrative remedies against Carson are not sufficient to withstand
her motion for summary judgment. Plaintiff had remedies available to him
to address his claims that he was forced to take TB medication against
his will and that Carson did not respond to his complaints regarding the
side effects of the medication and chose not to pursue them. Plaintiff
makes no allegation that prison officials obstructed his ability to
pursue his administrative remedies. Nor does plaintiff claim that the IGRC
or Carson would not allow him to file a grievance against her or did not
otherwise act on a grievance that he did file against her. See Reyes v.
Punzel, 206 F. Supp.2d 431, 434 (W.D.N.Y. 2002). Therefore, his claims
against Carson must be dismissed for failure to exhaust administrative
remedies pursuant to the PLRA.
Defendant Joyce Carson's motion for summary judgment (Dkt. #15) is
granted and the claims against her are hereby dismissed with prejudice.
IT IS SO ORDERED.