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PRUITT v. LEWY

July 27, 2004.

PHELICIA PRUITT, Plaintiff,
v.
DR. LEWY, Defendant.



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

REPORT AND RECOMMENDATION

TO THE HONORABLE LEWIS A. KAPLAN, U.S.D.J.:

  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.)

  DISCUSSION

  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).

  I. RULE 12(b)(1) IS INAPPLICABLE.

  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 ...


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