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United States District Court, S.D. New York

July 27, 2004.

DR. LEWY, Defendant.

The opinion of the court was delivered by: DEBRA FREEMAN, Magistrate Judge



  Pro se plaintiff Phelicia Pruitt ("Pruitt") brings this civil rights action under 42 U.S.C. § 1983, alleging that defendant Dr. Dolores Lewy ("Lewy"), a staff physician at Bedford Hills Correctional Facility ("Bedford Hills"), violated Pruitt's constitutional rights by showing deliberate indifference to her serious medical needs while she was incarcerated at Bedford Hills. Pruitt seeks an order enjoining Lewy from ignoring her complaints of pain, and requiring Lewy to examine her thoroughly in order to assess her medical condition correctly. Pruitt also seeks compensatory damages in the amount of $60,000.

  Currently pending before the Court is a motion by Lewy to dismiss the Complaint, on the sole ground that Pruitt failed to exhaust the administrative remedies available to her, as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e ("PLRA").

  As more fully set forth below, I recommend that Lewy's motion to dismiss be converted into a motion for summary judgment, and that Lewy be granted summary judgment, on the ground that Pruitt has failed to exhaust her available administrative remedies. BACKGROUND

  A. Factual Background

  Pruitt's allegations arise out of Lewy's alleged failure to diagnose and provide adequate treatment for Pruitt's liver ailment while she was confined at Bedford Hills. (See Complaint, dated Aug. 8, 2002 ("Compl.").) Pruitt asserts that, upon her arrival at Bedford Hills on February 12, 1999, she immediately informed the medical department that she suffered from cirrhosis of the liver. (Id. ¶ 11.) From 1999 through 2001, blood tests purportedly taken by Lewy showed rising "liver levels" and falling white blood cell counts. (Id.) Yet instead of examining Pruitt further, Lewy allegedly just accused her of drinking, and refused to believe her when she denied drinking. (Id.) According to Pruitt, over this same period, she complained to Lewy of significant stomach pain resulting from her inflamed liver, to which Lewy's only response was to say, "Just face it, you're going to die in here." (Id.) Additionally, Pruitt alleges that, although she expressed concern to Lewy about the potential side effects of certain medications she was prescribed, Lewy continued to prescribe medications that had injurious effects on her liver and liver function. (Id.) According to the Complaint, Pruitt "filed and dealt with various grievances, all relating to medical care," but was unsuccessful in obtaining relief through the grievance process. (Id. ¶ 9.)

  B. Procedural History

  Pruitt's Complaint in this action is dated August 8, 2002, although the Court's docket shows a filing date of October 25, 2002. (Dkt. 2.) On January 31, 2003, the action was referred to Magistrate Judge Francis for general pretrial supervision and to report and recommend with respect to dispositive motions. (Dkt. 7.) After receiving a requested extension (Dkt. 6), Lewy, through the Office of the Attorney General, moved to dismiss the Complaint on February 4, 2003 (Dkt. 9). The action was reassigned from Magistrate Judge Francis to me on February 5, 2003. (Dkt. 8.) The parties then made additional submissions, in letter and brief form, on the motion to dismiss. (See Dkt. 17; Pruitt's Reply Memorandum of Law in opposition to the motion to dismiss, undated, received June 2, 2003; 4/7/03 Letter from Pruitt to the Court, attaching copies of Pruitt's letters of complaint; 4/1/03 Letter from Pruitt to the Court, and accompanying Declaration.) From February through October of 2003, the Court held several telephone conferences with the parties to discuss the status of the action. (Dkt. 12, 20, 21 & 26.)


  Pruitt's allegations, liberally construed,*fn1 charge that Lewy acted with deliberate indifference to Pruitt's medical needs in violation of her constitutional rights by failing to provide her with proper diagnoses, examination, and medical treatment for her liver ailment and associated pain. Lewy has moved to dismiss the claim pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).


  Lewy initially argues that Pruitt's purported failure to exhaust her administrative remedies deprives this Court of subject matter jurisdiction, pursuant to the PLRA, and that her claim must therefore be dismissed under Fed.R.Civ.P. 12(b)(1). (See Defendant's Memorandum of Law, dated Feb. 4, 2003 ("Def. Mem.").) This argument, however, is no longer tenable, as, subsequent to the submission of Lewy's motion to dismiss, the Second Circuit made clear that "failure to exhaust administrative remedies is not a jurisdictional predicate" under the PLRA. Richardson v. Goord, 347 F.3d 431, 433 (2d Cir. 2003). Accordingly, I recommend that the Complaint not be dismissed on that ground.


  Lewy also argues that the Complaint should be dismissed for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). A motion to dismiss pursuant to Rule 12(b)(6), however, allows the Court to consider only the plaintiff's complaint and those documents referenced therein or otherwise integral to the pleading. See, e.g., Thomas v. Ashcroft, No. 02 Civ. 5746 (CBM), 2004 WL 1444735, at *6 (S.D.N.Y. June 25, 2004). Here, Lewy has submitted a sworn affidavit from a New York State Department of Correctional Services ("DOCS") official charged with overseeing the records of inmate administrative appeals, who states that those records show that Pruitt has never pursued any internal grievance through to the end of the administrative process. (See Affidavit of Karen Bellamy, Assistant Director of the Inmate Grievance Program, dated Feb. 4, 2003 (attached to the Notice of Motion to Dismiss)). Pruitt, for her part, has responded by submitting a declaration and numerous documents purportedly demonstrating her efforts to exhaust her claim. (See 4/7/03 Letter from Pruitt to the Court, attaching copies of Pruitt's letters of complaint; 4/1/03 Letter from Pruitt to the Court, and accompanying Declaration.) Under the circumstances, it is appropriate to convert the motion to dismiss into a motion for summary judgment under Rule 56.*fn2 See Fed.R.Civ.P. 12(b); McCoy v. Goord, 255 F. Supp.2d 233, 251 (S.D.N.Y. 2003) ("If nonexhaustion is not clear from the face of the complaint, a defendant's motion to dismiss should be converted, pursuant to Rule 12(b), to one for summary judgment limited to the narrow issue of exhaustion and the relatively straightforward questions about the plaintiff's efforts to exhaust, whether remedies were available, or whether exhaustion might be, in very limited circumstances, excused.").

  A. Applicable Legal Standard

  Under Rule 56(c), a motion for summary judgment may be granted when the parties' sworn submissions show that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986); Holt v. KMI-Continental, Inc., 95 F.3d 123, 128 (2d Cir. 1996). The moving party bears the burden of showing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). In considering a summary judgment motion, the Court must "view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L.B. Foster Co. v. Am. Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Further, as here, where the party opposing summary judgment is proceeding on a pro se basis, the Court must read that party's papers liberally and interpret them "to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (internal quotation marks and citation omitted). Even a pro se plaintiff, however, cannot withstand a motion for summary judgment by relying merely on the allegations of a complaint. See Champion v. Artuz, 76 F.3d 483, 485 (2d Cir. 1996). Rather, when confronted with evidence of facts that would support judgment in the defendant's favor as a matter of law, the plaintiff must come forward with evidence in admissible form that is capable of refuting those facts. See Fed.R. Civ. P. 56(e); see also Jermosen v. Coughlin, 877 F. Supp. 864, 867 (S.D.N.Y. 1999) (pro se plaintiffs must make proper evidentiary showing in order to defeat summary judgment).

  Overall, the Court "cannot try issues of fact; it can only determine whether there are issues to be tried." Am. Mfrs. Mut. Ins. Co. v. Am. Broad.-Paramount Theatres, Inc., 388 F.2d 272, 279 (2d Cir. 1967); accord Sutera v. Schering Corp., 73 F.3d 13, 15-16 (2d Cir. 1995). Only where there is no genuine issue of material fact, viewing the evidence in the light most favorable to the nonmoving party, is summary judgment appropriate. See Liberty Lobby, 477 U.S. at 248; Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991). B. Exhaustion of Administrative Remedies

  1. Exhaustion Is Required Under the PLRA.

  All claims of misconduct regarding prison conditions must be exhausted before they can be raised in this Court. See, e.g., Sedney v. Hasse, No. 02 Civ. 2583 (DC), 2003 WL 21939702, at *3 (S.D.N.Y. Aug. 12, 2003). The PLRA 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." 42 U.S.C. § 1997e(a). The Supreme Court has held that this exhaustion requirement "applies to all inmate suits about prison life, whether they involve general or particular episodes, and whether they allege excessive force or some other wrong." See Porter v. Nussle, 534 U.S. 516, 532 (2002). Moreover, claims for deliberate indifference regarding medical care are claims "with respect to prison conditions" under § 1997e and, as such, must be exhausted under the PLRA. See Wagnoon v. Johnson, No. 02 Civ. 10282 (RCC) (GWG), 2004 WL 583764 (S.D.N.Y. Mar. 23, 2004) (dismissing deliberate indifference claim because inmate had failed to exhaust administrative remedies and the claim was thus barred by the PLRA). Further, a prisoner must completely exhaust the available administrative remedies to the highest level for each claim he or she seeks to present. See, e.g., Sulton v. Greiner, No. 00 Civ. 0727 (RWS), 2000 WL 1809284, at *3-4 (S.D.N.Y. Dec. 11, 2000) (claim dismissed where inmate failed to appeal to final decision-maker as required by formal grievance program).

  Under PLRA Section 1997e, all institutional remedies must be pursued, even if the prisoner is ultimately time-barred from pursuing the administrative process or is seeking a remedy that cannot be awarded in the administrative proceeding. See Santiago v. Meinsen, 89 F. Supp.2d 435, 440 (S.D.N.Y. 2000); see also Booth v. Churner, 532 U.S. 731, 736-37 (2001) (requiring an inmate to exhaust claims through all available proceedings, even those that could not provide the relief sought); Cruz v. Jordan, 80 F. Supp.2d 109, 117 (S.D.N.Y. 1999) (even though monetary damages sought by the plaintiff were not available in the administrative proceeding, the exhaustion requirement remained applicable).

  Because exhaustion is required before a complaint can be properly filed in federal court, Pruitt's deliberate indifference claim can only proceed in this Court if she has exhausted all available administrative remedies with respect to the claim, including all appellate remedies provided within the available grievance program. See, e.g., Porter, 534 U.S. at 524 (citing Booth, 532 U.S. at 739); see also Hemphill v. New York, 198 F. Supp.2d 546, 549 (S.D.N.Y. 2002) ("Statutory exhaustion requirements are mandatory, and courts are not free to dispense with them.").

  2. An Administrative Grievance Procedure Was Available To Pruitt.

  In New York, prisoners can file internal grievances on most issues affecting their confinement, through grievance procedures established by DOCS. See N.Y. Correct. Law § 139 (authorizing the filing of grievances); see also, e.g., Sulton v. Greiner, No. 00 Civ. 0727 (RWS), 2000 WL 1809284, at *3 (S.D.N.Y. Dec. 11, 2000) (noting that DOCS grievance procedures must be followed for a prisoner to exhaust administrative remedies). The administrative grievance program available to prisoners is called the Inmate Grievance Program ("IGP"). N.Y. Comp. Codes R. & Regs. tit. 7, § 701.1.

  The IGP is a three-step procedure, initiated by the submission of a formal written complaint on an Inmate Grievance Complaint form or plain paper, which must contain certain information about the inmate and the claim. This formal written complaint must be submitted to the Inmate Grievance Resolution Committee ("IGRC") within 14 days of the event giving rise to the grievance. Id. § 701.7(a). If the IGRC's decision is not satisfactory to the inmate, the inmate must file an appeal with the superintendent of the facility within four working days after receipt of the IGRC determination. Id. § 701.7(b). Finally, the inmate must appeal an unsatisfactory decision from the superintendent to the Central Office Review Committee ("CORC") within four working days after receipt of the superintendent's response. Id. § 701.7(c). In order to have properly exhausted her available administrative remedies, Pruitt must have followed these procedures prior to filing suit.*fn3

  3. Pruitt Has Failed To Exhaust Available Administrative Remedies.

  In her Complaint, Pruitt alleges that she had used institutional grievance procedures to attempt to resolve her claims relating to medical care, and that one of her grievances was then pending before the "Central Office in Albany." (Compl. ¶ 9.) In response to Lewy's motion, however, Pruitt has not given any explanation for these allegations. She offers no proof that any appeal in Albany was, in fact, pending, and, on the contrary, it now appears that she has backed away from her initial allegations. Thus, in opposition to Lewy's motion, instead of showing that she complied with the formal IGP procedures, Pruitt argues that she exhausted her administrative remedies through letter writing. Specifically, Pruitt now states that she wrote a letter to the grievance committee to complain about Lewy, and, when the IGRC responded that she should contact Deputy Superintendent of Health Services Cheree Lemmerman ("Lemmerman") with regard to the issues raised in her letter, she went ahead and wrote another letter to Lemmerman, who apparently referred the matter to someone else for review. (See 4/1/03 Letter from Pruitt to the Court.) Pruitt argues that, as she has written a letter to the IGRC and then followed up with a letter to Lemmerman, as directed by the IGRC, she has effectively exhausted her available administrative remedies.*fn4 (See id.)

  Yet Pruitt's various letters, even if they had fully raised the claim presented in the Complaint,*fn5 would be insufficient to satisfy the PLRA exhaustion requirement, which obligates an inmate to comply with formal grievance procedures. See, e.g., Sedney v. Hasse, No. 02 Civ. 2583 (DC), 2003 WL 21939702, at *4 (S.D.N.Y. Aug. 12, 2003) (citing Hemphill v. New York, 198 F. Supp.2d 546, 548 (S.D.N.Y. 2002)) (courts in both cases stating that prison officials are generally entitled to require strict compliance with established administrative procedures). Letter writing, even if directed to a facility's supervisor, does not serve to exhaust an inmate's claim where formal grievance procedures are available. See id.; Mills v. Garvin, No. 99 Civ. 6032 (CM), 2001 WL 286784, at *3 (S.D.N.Y. Mar. 2, 2001) ("[L]etter writing is not the equivalent of an exhaustion of administrative remedies under the PLRA.") In this case, the IGP procedures were available to Pruitt, to allow her to grieve her claim against Lewy formally. (See supra at 8-9.) She makes no claim that she was prevented from utilizing the established formal grievance procedures. (See n. 3, supra.)

  As Lewy has offered sworn testimony showing that Pruitt never filed a formal appeal pursuant to the Inmate Grievance Program, and as Pruitt has not refuted this testimony, either by the declaration she filed, by the documentary evidence she offered, or by any other submission to the Court, she cannot prevail on Lewy's motion. Even when the record is viewed in the light most favorable to her, it appears that Pruitt has failed to exhaust her claim against Lewy before commencing this lawsuit. Therefore, I recommend that summary judgment be granted, and that the Complaint be dismissed. See, e.g., Sedney, 2003 WL 21939702, at *4 (granting summary judgment for defendants where the record clearly showed failure to exhaust); Hemphill, 198 F. Supp.2d at 549 (granting summary judgment for defendants because, among other reasons, plaintiff failed to pursue available administrative remedies).


  For all the foregoing reasons, I recommend that summary judgment be granted in favor of defendant Dr. Dolores Lewy, and that plaintiff Phelicia Pruitt's Complaint be dismissed without prejudice. Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan, United States Courthouse, 500 Pearl Street, Room 1310, New York, New York 10007, and to the chambers of the undersigned, United States Courthouse, 40 Centre Street, Room 631, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Kaplan. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).

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