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March 30, 2004.

GARY SAULS, Plaintiff -against- NYC DEPT. OF CORRECTIONAL, et al., A.D.W. Guerreri Badge #71, Defendants

The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge


This is a pro se action brought by a state prisoner under 42 U.S.C. § 1983, alleging that a correction official interfered with his right to medical care in violation of the Eighth Amendment to the U.S. Constitution. Defendants are the New York City Department of Correction and Deputy Warden Michael Guarneri, misspelled in the caption "Guerreri."

Now before the Court is defendants' motion to dismiss the complaint for failure to exhaust administrative grievance procedures under the Prison Litigation Reform Act and for failure to state a claim. The motion is granted.

  Procedural History and The Complaint

  The initial complaint in this action was filed in August of 2001. In Page 2 an order dated July 25, 2002, Chief Judge Mukasey noted that there was no valid cause of action against the New York City Department of Correction stated in the initial complaint. Sauls v. N.Y.C. Dept, of Correctional, et al., 02 Civ. 5804 (S.D.N.Y. July 25, 2002). With regard to the claim against the individual defendant the Court did not find sufficient indication that Sauls had exhausted his administrative remedies.

  The New York City Department of Correction has established an Inmate Grievance Resolution Program in order to provide prisoners with an administrative forum to bring their grievances. See New York City Department of Correction Directive No. 3375R (March 4, 1985). Generally, the regulations establish a five-step inmate grievance process. First, an inmate may file a complaint with the Inmate Grievance Resolution Committee ("IGRC"), which will attempt to resolve the grievance informally within five (5) working days. See id., at ¶ III(B)(2). The inmate may then appeal the Committee's decision to the facility Warden, who must render a decision within five (5) working days of receiving the appeal. See id., at ¶ III(B)(3). The inmate may then appeal the Warden's decision to the Central Office Review Committee ("CORC"), which must render a decision within fifteen (15) working days. See id., at ¶ III(B)(4). The inmate may then file an appeal of the CORC's decision to the Board of Correction ("BOC"), which issues or has an independent arbitrator issue an Page 3 advisory recommendation within twenty (20) working days to the BOC Commissioner. See id., at ¶ II(B)(5). Within ten (10) working days of receipt of the BOC's recommendation, the Commissioner must issue a final decision. See id. If a grievance is not decided within the allotted time frames, the inmate may either grant an extension of time to grievance officials or appeal the grievance to the next level. See id. at ¶ III(B)(6). The IGRC Coordinator must immediately refer emergency matters (e.g., where an inmate's health, safety or welfare is in imminent danger; there are serious problems relating to conditions of confinement; or the safety of the institution is affected) directly to the Commanding Officer. See id. at ¶ IV(D). Non-grievable issues include complaints pertaining to an alleged assault or verbal harassment, matters already being litigated, and matters where there is already an existing NYCDOC's appeal mechanism (e.g., determinations of disciplinary hearings and classification). See, id., at ¶ II(B).

  The complaint stated, without explanation, that Sauls' issue was "non-grievable." Chief Judge Mukasey, therefore, directed Sauls to amend the complaint to show how he claims to have exhausted his administrative remedies.

  Sauls filed an amended complaint on September 16, 2002. The Page 4 amended complaint alleges that Sauls was incarcerated at the Anna M. Kross Center Facility ("A.M.K.C.") at Rikers Island from October 11, 2000 to August 31, 2001, where the following incident is alleged to have taken place. Sauls was receiving "psych medication" at the time. A Health Transfer Information Sheet attached to Sauls' papers on this motion further specifies that Sauls was receiving standard dosages of standard anti-depressants (Celexa and Elavil) to treat his depression and substance abuse problems. In the evening of June 14, 2001, the housing unit officer initially failed to grant Sauls permission to go to the pharmacy to retrieve his medication. Sauls then gave his Prisoner I.D. Card to another prisoner who was going to the pharmacy, so that this prisoner might retrieve his medication for him. Shortly thereafter the housing unit officer made a special inquiry with the pharmacy to double-check whether Sauls was scheduled to receive medication that evening. When the pharmacy affirmed that he was, Sauls was then permitted to go to the pharmacy. Sauls alleges that on his way there Deputy Warden Guarneri stopped him, noted that he was not carrying his Prisoner I.D. and told him to go back to his cell. Sauls alleges that he objected and told Guarneri that he was on his way to get his medication. Guarneri, however, did not relent and sent Sauls back to his cell, regardless. Sauls alleges that he had violent nightmares, cold sweats, insomnia, and a total loss of appetite as a consequence of being deprived of his psychiatric medications for a 24 hour period. There is no allegation that these Page 5 effects were more than short term. Sauls received his medications the next day. Sauls seeks monetary damages in the amount of $10,000,000.

  In the amended complaint Sauls claims that he filed a grievance with the Inmates Grievance Resolution Committee at A.M.K.C. on August 13, 2002, but that he was still awaiting a reply as of the date of the amended complaint. The amended complaint, however, does not supply any supporting documentary evidence of these claims.

  The case was reassigned to Judge Griesa on September 27, 2002.

  On January 28, 2003 defendants filed the present motion. The motion seeks to dismiss for failure to exhaust administrative remedies and for failure to state a claim.

  In his opposition papers, dated February 27, 2003, Sauls makes certain assertions regarding his failure to exhaust, which supplement what is stated in the complaint. Sauls alleges that he made a good faith effort to avail himself of the grievance procedures. He claims that he spoke with a liaison officer at the A.M.K.C., named C.O. Dudley, the day after the incident. The liaison officer allegedly told Sauls that he could not raise his "medical issue" Page 6 through the grievance procedures and that he should instead raise it at the next administration meeting that Sauls would be attending as an inmate delegate. Dudley also allegedly encouraged Sauls to file a formal complaint with the facility Patient Advocate, Castillo. Sauls states that he followed Dudley's advice and met with Castillo, who took his complaint. He also raised the issue at the administration meeting. Sauls' principal contention in his opposition papers is that he thus made certain attempts after the incident to press his grievance and was discouraged from taking the issue up with the formal Inmate Grievance Resolution Program.

  Upon receiving Judge Mukasey's order, Sauls alleges that he "addressed the issue to the Warden, C.O.R.C., the Board of Corrections, and finally to the Commissioner of the Department of Corrections." He also states that he sent ...

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