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CURRY v. FISCHER

United States District Court, S.D. New York


April 12, 2004.

CORNELL CURRY, Plaintiff, -v.- BRIAN FISCHER, DR. J. PERILLI, DR. CURTIS JOHNSON, DR. SUSAN STUKES, and NURSE COUGHLIN, Defendants

The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge

REPORT AND RECOMMENDATION
Cornell Curry, currently an inmate at the Franklin Correctional Facility, has brought this suit pro se under 42 U.S.C. § 1983 against various employees of the Sing Sing Correctional Facility ("Sing Sing") alleging that they were deliberately indifferent to his dental needs in violation of his rights under the Eighth Amendment. Defendants — the Superintendent of Sing Sing and members of Sing Sing's dental staff — have moved to dismiss Curry's complaint pursuant to Fed.R.Civ.P. 12(b)(6). For the following reasons, the motion should be granted and Curry should be permitted to file an amended complaint.

I. BACKGROUND

  A. Procedural History

  The complaint in this action was filed on June 13, 2002. Complaint, filed June 13, 2002 (Docket #2) ("Compl."). The case was subsequently held in abeyance to allow Curry to exhaust his administrative remedies and was reopened by Order of the court on March 6, 2003. See Order, filed March 6, 2003 (Docket #5). On June 10, 2003, defendant Brian Fischer filed a motion to dismiss in lieu of an answer. See Notice of Motion, filed June 10, 2003 (Docket #14). In response, Curry submitted several documents including a "Notice of Affidavit in Opposition to Defendants Motion to dismiss the Complaint," dated July 7, 2003, filed August 22, 2003 (Docket #24) ("Affidavit"), which attached exhibits. Because this affidavit contained factual allegations that were not contained in the original complaint, the Court construed Curry's July 7, 2003 submissions as a motion to amend the complaint and deemed the factual allegations of the affidavit to supplement the allegations in the original complaint. See Order, filed August 22, 2003 (Docket #22). Thereafter, defendants filed the instant motion to dismiss. See Notice of Motion, filed September 22, 2003 (Docket #28).

  B. Facts

  For purposes of this motion, the facts alleged in the complaint and Curry's July 7, 2003 affidavit are assumed to be true.

  On November 30, 2000, while incarcerated at Sing Sing, Curry requested medical attention for an abscess forming in his mouth. He was assigned to Dr. Susan Stukes, who took x-rays and prescribed Motrin. Curry requested antibiotics but Dr. Stukes would not prescribe them. Compl. ¶ 1.

  On December 13, 2000, Curry was taken to the Sing Sing emergency room where Nurse Coughlin informed him that the abscess had burst, causing an infection in his mouth, swelling to his face, and a high temperature. She prescribed an antibiotic and Tylenol and issued Curry a pass valid for 72 hours so he could return to the emergency room. Compl. ¶ 2; Affidavit ¶ 3. On December 14, 2000, when Curry went to see Dr. Stukes, Dr. Stukes handed him a prescription for Motrin in the waiting room. She told Curry that she was busy, that she had reviewed Nurse Coughlin's report from the night before, and that she would not examine him. Compl. ¶ 3; Affidavit ¶ 4.

  On December 18 and 19, 2000, Curry was issued emergency passes to see Dr. Stukes in the dental department but Dr. Stukes apparently cancelled these passes and refused to see Curry. Compl. ¶ 4; Affidavit ¶ 5. On December 20, Curry was seen by the sick-call nurse, Nurse Hanson. Because the swelling was spreading, she sent Curry to the dental department but Dr. Stukes again refused to see him. Compl. ¶ 5. On either the 20th or 22nd, additional x-rays were taken, Curry was prescribed Amoxicillin, and he was scheduled to return a few days later. Compl. ¶ 6; Affidavit ¶ 6.

  On December 29th, Curry complained to the sick-call nurse that his condition had worsened. Specifically, he complained of pain and difficulty sleeping and eating. Nurse Hanson told him that he needed to be seen by Dr. Stukes but Dr. Stukes refused to see him. Compl. ¶ 7. On January 5, 2001, Curry was seen by Nurse Hanson, who measured his temperature at 102 degrees and again issued an emergency pass to see Dr. Stukes. Compl. ¶ 9; Affidavit ¶ 9. Curry's complaint states that Dr. Stukes did see Curry on January 5 but dismissed him without prescribing an antibiotic. Compl. ¶ 9. His affidavit, however, alleges that she refused to see him at all on that date. Affidavit ¶ 9. Curry also sought treatment on January 6, 8, and 9 but ran into difficulty obtaining the medications Nurse Hanson prescribed and was denied the treatment he requested. Compl. ¶¶ 10-11; Affidavit ¶¶ 10-11.

  On January 11 or 12, 2001, x-rays were taken. However, the radiologist had difficulty taking the x-rays because of the swelling. When Dr. Stukes was called in, she prescribed Amoxicillin to treat the swelling. However, Dr. Stukes refused to provide any medication to address the migraine headaches Curry was experiencing. Compl. ¶ 12; Affidavit ¶ 12. Also, she told Curry that if the x-rays could not be taken on the subsequent appointment, "he will have to treat himself, because she was not going to the trouble." Compl. ¶ 12.

  By sometime between January 16 and 18, the swelling had spread to Curry's neck and glands. He saw Dr. Curtis Johnson and explained the problems he was having with Dr. Stukes. Dr. Johnson told Curry that he was assigned to Dr. Stukes and that she would handle his medication. Compl. ¶¶ 13-14; Affidavit ¶ 13. Dr. Stukes refused to prescribe any medications. Affidavit ¶ 13.

  The sick-call nurse wrote Curry another pass for dental care on January 19, 2001. Again, Dr. Stukes refused to examine him even though the swelling had spread down his neck. Dr. Stukes ordered him to leave and stated that she was busy and would not examine him every time a nurse sent him to see her. Compl. ¶ 15; Affidavit ¶ 14.

  Curry was seen on January 23, 2001 by Dr. Kyee Maw, who prescribed Augmentin and Motrin. Compl. ¶ 16. He again saw Dr. Maw on February 7, 2001 after this medication had run out. Id. ¶¶ 17-18. Dr. Maw called Dr. Stukes into the room and explained that because the antibiotic should have reduced the swelling completely but it had not, Curry needed to be seen by an oral specialist. Id. ¶ 18. On February 13, 2001, Curry was seen by an oral specialist who believed that Curry's migraines and loss of feeling in his jaw may have been attributable to a tumor and scheduled Curry for a CT Scan. Id. ¶ 19.

  In March 2001, Curry continued to complain about the constant pain and migraines he was experiencing. On March 1, Dr. Stukes refused to see him. Compl. ¶ 20; Affidavit ¶ 17. On March 9, 10, and 12, Curry sought but did not receive treatment. Compl. ¶¶ 22-23; Affidavit ¶¶ 18-20.

  On March 7, 2001, Curry was taken to St. Agnes Hospital for the CT Scan. The procedure could not be done, however, because the required blood samples were not on file. Compl. ¶ 21. On March 27, the scan was performed and no malignancy was found. Id. ¶ 25. On April 3, 2001, the oral specialist ordered an MRI to make sure that a tumor was not forming.

  Also at that appointment, the oral specialist informed Curry that the swelling on the left side of his face was permanent and that the nerves in his jaw area were permanently damaged from the swelling persisting so long. The doctor told Curry that there was no medication or treatment that would help at this point. Id. ¶ 26.

  On May 7, 2001, Curry was seen by Philip Williams, a physician's assistant, who concurred with the oral specialist and the radiologist that an MRI was necessary to make sure a tumor was not developing. Compl. ¶ 27; Affidavit ¶ 22. Nonetheless, two days later, Williams informed Curry that Dr. J. Perilli, the Facility Health Services Director, refused the MRI and recommended "B" complex vitamins instead. Affidavit ¶ 22. On August 14, 2001, the oral specialist informed Curry that he had argued with Dr. Perilli and finally convinced him to order an MRI. Id. ¶ 23. Curry underwent this MRI sometime thereafter and learned in November 2001 that the results were again negative. Compl. ¶ 29.

  Over a year later, in October 2002, a doctor at Fishkill Correctional Facility examined Curry and informed him that three nerves in his face were permanently damaged. This doctor said he recommended no further tests. Affidavit ¶ 24. Curry alleges that he continues to suffer from severe pain. He also alleges permanent loss of feeling and taste in the left side of his mouth and jaw and permanent swelling in the left side of his face. 3Compl. ¶ IV-A. Curry seeks $1 million in compensatory damages and $1 million in punitive damages. 0Compl. ¶ V.

 II. STANDARD OF REVIEW

  In resolving a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes. 416 U.S. 232, 236 (1974); Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003). A complaint should not be dismissed for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In making this evaluation, complaints drafted by pro se plaintiffs are held "`to less stringent standards than formal pleadings drafted by lawyers,'" Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam)), and they should be interpreted "`to raise the strongest arguments that they suggest,'" Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).

 III. DISCUSSION

  The defendants have moved to dismiss the complaint on the following grounds: (1) Curry has failed to allege a serious medical or dental need that was deliberately neglected by defendants, (2) Curry has failed to exhaust his administrative remedies, and (3) the defendants are entitled to qualified immunity. See Memorandum of Law in Support of Motion to Dismiss the Complaint, filed September 22, 2003 (Docket #29), at 2-3. Defendant Fischer also argues for dismissal because Curry fails to allege his personal involvement in the alleged constitutional violations. Id. at 14-17. Because Curry's own papers concede that he did not exhaust his administrative remedies with respect to the matters raised in his complaint, it should be dismissed on that basis alone.

  A. Exhaustion

  The Prison Litigation Reform Act ("PLRA") provides in relevant part:

No 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.
42 U.S.C. § 1997e(a). Accordingly, a prisoner "must pursue his challenge to the conditions in question through the highest level of administrative review prior to filing his suit." Flanagan v. Maly, 2002 WL 122921, at *2 (S.D.N.Y. Jan. 29, 2002) (citations omitted): see also Porter v. Nussle, 534 U.S. 516, 524 (2002) ("All `available' remedies must now be exhausted; those remedies need not meet federal standards, nor must they be `plain, speedy, and effective.'" (citations omitted)). The Supreme Court has held that "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter, 534 U.S. at 532. The exhaustion requirement applies even when a plaintiff seeks relief not available in prison administrative proceedings, such as monetary damages. See Booth v. Churner, 532 U.S. 731, 740-41(2001).

  In New York, formal exhaustion for state prisoners requires complying with the three-step grievance and appeal procedure outlined in the Inmate Grievance Program, N.Y. Comp. Codes R. & Regs. tit. 7 ("7 N.Y.C.R.R."), § 701.7. See Hemphill v. New York, 198 F. Supp.2d 546, 548 (S.D.N.Y. 2002). In brief, an inmate must first file a complaint with the Inmate Grievance Resolution Committee ("IGRC"). 7 N.Y.C.R.R. § 701.7(a). Next, after receiving a response from the IGRC, the inmate must appeal to the superintendent of the facility. Id. § 701.7(b). Finally, after receiving a response from the superintendent, the prisoner must seek review of the superintendent's decision with the Central Office Review Committee ("CORC"). Id § 701.7(c). See generally Petit v. Bender. 2003 WL 22743485, at *4 (S.D.N.Y. Nov. 19, 2003). "A prisoner has not exhausted his administrative remedies until he goes through all three levels of the grievance procedure." Hemphill, 198 F. Supp.2d at 548; accord Sulton v. Wright, 265 F. Supp.2d 292, 296 (S.D.N.Y. 2003) (inmates must "exhaust all administrative remedies, at all levels of appeal, in order for their claims to survive a motion to dismiss" (internal quotation marks and citations omitted)); Rivera v. Goord, 253 F. Supp.2d 735, 746 (S.D.N.Y. 2003) (same).

  Although several courts have held that 7 N.Y.C.R.R. § 701.7 provides the exclusive method of exhaustion, see, e.g., Rodriguez v. Hahn, 209 F. Supp.2d 344, 347-48 (S.D.N.Y. 2002), the Second Circuit has stated in dictum that successful "[resolution of the matter through informal channels satisfies the exhaustion requirement, as, under the administrative scheme applicable to New York prisoners, grieving through informal channels is an available remedy," Marvin v. Goord, 255 F.3d 40, 43 n.3 (2d Cir. 2001) (citing 7 N.Y.C.R.R. § 701.1 ("[T]he inmate grievance program (IGP) is intended to supplement, not replace, existing formal or informal channels of problem resolution.")). The resolution of the problem through informal means, within the time period in which a grievance or appeal must be filed, obviates the need for the inmate to utilize formal procedures. See Dixon v. Goord, 224 F. Supp.2d 739, 749 (S.D.N.Y. 2002) ("The exhaustion requirement is satisfied by resolution of the matter, i.e., an inmate is not required to continue to complain after his grievances have been addressed."); Perez v. Blot, 195 F. Supp.2d 539, 546 (S.D.N.Y. 2002) ("[Plaintiff's] alleged complaints to correctional officials about the assault purportedly secured the same favorable resolution available to him pursuant to the [formal] procedure. . . . [I]t would make little sense to demand that Plaintiff jump through the further, elaborate hoops of the IGP procedure."). The contours of this aspect of the exhaustion requirement are not well-settled and the Second Circuit has recently appointed counsel in a number of cases to clarify "whether inmates who did not fully comply with the dictates of New York law nonetheless exhausted their claims in other ways," Ortiz v. McBride, 323 F.3d 191, 194 (2d Cir. 2003).

  In this case, Curry alleges filing two grievances: the first in January 2001 and the second in October 2002. Compl. ¶ 8; Affidavit ¶ 25. Each is discussed in turn.

  B. January 2001 Grievance

  Curry filed his first grievance based on Dr. Stukes's refusal to prescribe additional antibiotics on December 14, 2000 and based on the fact that his antibiotics had run out as of December 27, causing his mouth to become infected. Compl. ¶ 8; Grievance No. 32771-01, dated January 2, 2001 (annexed as Ex. G to Affidavit). After the IGRC denied his requested relief, Curry appealed to the Superintendent, Brian Fischer, who also denied Curry's request stating that Curry's medical needs were being met, as Curry was seen on January 11 and 21, 2001. Decision of Superintendent Fischer, dated January 31, 2001 (annexed as Ex. G to Affidavit); Compl. ¶ 8; Affidavit ¶ 16. However, it is undisputed that Curry did not timely appeal the Superintendent's determination to the CORC. Instead, he purported to submit an appeal almost two years later, after this suit was filed. See Letter to Director of CORC, dated October 10, 2002 ("CORC Letter") (annexed as Ex. L to Affidavit). Unless Curry satisfied the exhaustion requirement through some informal channel, his failure to appeal to the CORC in a timely fashion renders his grievance regarding deliberate indifference unexhausted.

  In his letter to the Director of CORC, Curry appears to argue that he did not appeal to the CORC because at the time he received the Superintendent's decision, his complaints had been resolved to his satisfaction. See CORC Letter at 1-2 (explaining that the day after Curry received Fischer's decision, he was informed that he would be seen by an outside oral specialist, who then told him he would be seen on a regular basis). However, the facts as set forth in Curry's own complaint and affidavit in this case state otherwise. In these documents, Curry contends that he in fact was not seen by anyone in the dental department on January 21, 2001, a Sunday. Compl. ¶ 8; Affidavit ¶ 16. He also alleges that after filing the grievance, he continued to be refused antibiotics on multiple occasions in January, early February, and March. Compl. ¶¶ 9-15, 17, 20-23; Affidavit ¶¶ 9-15, 17-20. Ultimately, Curry was seen by an oral specialist but his complaint states that this was not suggested until February 7 and that he did not see the specialist until February 13. Compl. ¶¶ 18-19.

  In any event, inmates must appeal the decision of the Superintendent to the CORC within four working days. 7 N.Y.C.R.R. § 701.7(c). It is clear that during this four-day period Curry had no reason to believe that the issue he raised in his grievance had been successfully resolved — a fact that might have eliminated his obligation to appeal to the CORC. See Marvin, 255 F.3d at 43 n.3 (inmate's submissions indicated that he succeeded in overturning a prohibition on his correspondence by complaining to various correctional officers); Branch v. Brown, 2003 WL 21730709, at *6, *12 (S.D.N.Y. July 25, 2003) (grievance regarding doctor's failure to see inmate considered resolved for exhaustion purposes when grievance supervisor informed him that he was scheduled to see doctor as requested).

  The informal complaints Curry made to Dr. Johnson and Dr. Perilli also do not satisfy the exhaustion requirement because neither resolved his problem. In mid-January 2001, while his grievance was pending, Curry mentioned the problems he was having with Dr. Stakes to Dr. Johnson. Compl. ¶ 14; Affidavit ¶ 13. In March 2001, Curry wrote to Dr. Perilli complaining that he was not receiving treatment for "a very serious problem." Letter to Dr. Perilli, dated March 15, 2001 (annexed as Ex. I to Affidavit); Compl. ¶ 24; Affidavit ¶ 21. However, Curry does not contend that either resulted in a successful resolution of his problem. Indeed, he alleges precisely the opposite — that in January Dr. Johnson told him Dr. Stukes was in charge of his medication and that in March Dr. Perilli referred his letter to Dr. Johnson, who did not respond. See Compl. ¶¶ 14, 24; Affidavit ¶¶ 13, 21. Since informal channels did not lead to the resolution of his complaints, Curry cannot be deemed to have informally exhausted his remedies. See Hernandez v. Coffey, 2003 WL 22241431, at *3 n.4 (S.D.N.Y. Sept. 29, 2003) (informal exhaustion cannot be found where no resolution is reached despite many pleas and letters); Branch, 2003 WL 21730709, at *12 ("[L]etters to the superintendent alone do not satisfy the exhaustion requirement when dissatisfied with the results of the process. . . ."); see also Harris v. Totten, 244 F. Supp.2d 229, 233 (S.D.N.Y. 2003) ("[L]etters to prison officials do not satisfy the exhaustion requirement of the PLRA where the inmate has failed to follow the established grievance procedures." (citing cases)).

  Put simply, Curry failed to file an appeal with CORC within the deadline of four working days after the Superintendent's decision as was required for full exhaustion of his claim. See 7 N.Y.C.R.R. § 701.7(c). "Courts in this jurisdiction have regularly held that failure to timely file an appeal during the administrative grievance process, followed by a subsequent denial of access by CORC due to untimeliness, will not constitute exhaustion." Petit, 2003 WL 22743485, at *5 (citing cases). As the Petit court explained, allowing an inmate to satisfy the exhaustion requirement by attempting to file a late appeal to the CORC "is antithetical to the PLRA's goal of `reducing] the perceived burdensome flow of prisoner litigation.'" Id. (citations omitted).

  B. October 2002 Grievance

  The second grievance, which Curry filed in October 2002, is fully exhausted, as Curry appealed to both the Superintendent and the CORC, as required under the PLRA and New York's Inmate Grievance Program. See Affidavit ¶ 25; Decision of CORC, dated December 5, 2002 ("CORC Decision") (annexed as Ex. L to Affidavit); Decision of the Superintendent, dated November 5, 2002 ("Superintendent Decision") (annexed as Ex. L to Affidavit). But it is not enough to satisfy the PLRA's exhaustion requirement that some issue has been exhausted: there must be a connection between the administrative grievance and the matters raised in the federal court complaint. As one court put it, the PLRA requires an inmate to have exhausted a grievance that challenged the conditions "in question" in his suit. Flanagan, 2002 WL 122921, at *2. The facts alleged in Curry's second grievance do not encompass the facts contained in his complaint in this case. Curry's second grievance concerns only the oral surgeon's final decision not to order any further tests regarding Curry's ongoing condition. See Grievance No. 23499-02, dated October 9, 2002 (annexed as Ex. L to Affidavit). Although the grievance describes some of the early history of Curry's dental problems — stating, for example, that the problem began two years earlier at Sing Sing when Dr. Stukes failed to prescribe an antibiotic for an abscess in Curry's mouth — it does not seek redress for the defendants' past deliberate indifference but rather only for the denial of any further medical evaluation of his present condition. Id. at 1-2.*fn1 The only relief it seeks is that prison officials "provide further tests . . . to determine exactly what the problem is with my jaw and the pain from it." Id. at 1. The grievance does not discuss the alleged deliberate indifference of any of the defendants named in this suit other than Dr. Stukes. See id. at 2. Thus, when the CORC upheld the determination of the Superintendent that no further treatment was necessary, it made no ruling regarding the actions of any of the defendants named in this case or the various allegations raised in the complaint. See CORC Decision; see also Superintendent Decision.

  In Baskerville v. Blot, the court held that the exhaustion requirement was satisfied despite the fact that "[t]he scope of the grievance that plaintiff filed . . . was much narrower than the issues he [was] raising in the instant complaint." 224 F. Supp.2d 723, 730 (S.D.N.Y. 2002). However, the Baskerville court based its decision on the fact that the broader assault claim raised in the federal suit had been investigated and ruled upon by the CORC, even though the underlying facts of the assault were not explicitly laid out in the grievance. Id. Such treatment is not warranted here where the disposition of Curry's second grievance did not address his multiple allegations of past deliberate indifference as reflected in the complaint. The allegations in the complaint relate to the actions of Superintendent Fischer, Dr. Stukes, Dr. Johnson, Dr. Perilli, and Nurse Hanson. The October 2002 grievance, by contrast, did not state that he had present grievances against these individuals. In sum, Curry has failed to exhaust the issues raised in his complaint.

  Nonetheless, because Curry is proceeding pro se, he is entitled to leave to amend his complaint if "a liberal reading of the complaint gives any indication that a valid claim might be stated,'" Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (quoting Branum v. Clark. 927 F.2d 698, 705 (2d Cir. 1991)). Because there is arguably some connection between the original complaint and a potential claim addressed to the matter actually exhausted — that is, Curry's request for further testing to diagnose his existing jaw condition — Curry should be granted leave to file an amended complaint that raises solely this claim. This grant of course would be without prejudice to any arguments that defendants may make that the amended complaint fails to state a claim, is time-barred, or is otherwise improper. Such arguments, however, will be addressed by the Court only if Curry chooses to avail himself of the opportunity to submit such an amended complaint. Curry is forewarned that he must name as defendants in such an amended complaint only those individuals who actually committed the alleged constitutional violation. And, of course, the complaint may address only the matter raised in the October 2002 grievance.

 Conclusion

  For the foregoing reasons, Curry's complaint should be dismissed with leave to file an amended complaint that sets forth a cause of action relating solely to the matter raised in his October 2002 grievance. PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. Jed S. Rakoff, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Rakoff. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Am. 474 U.S. 140 (1985).


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