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September 30, 2004.

STATE OF NEW YORK, et al., Defendants.

The opinion of the court was delivered by: SIDNEY STEIN, District Judge


Francisco Veloz brings this action pro se pursuant to 42 U.S.C. § 1983 alleging that defendants violated his constitutional right under the Eighth Amendment to the U.S. Constitution to be free from cruel and unusual punishment. His allegations arise out of the treatment he received for a spinal condition while incarcerated at Green Haven Correctional Facility. Specifically, Veloz alleges defendants failed to provide adequate medical care for his condition for more than eight years. He also alleges that the operation that was eventually performed to improve his condition actually worsened his condition and caused him to lose feeling from the waist down and to have severe bladder problems. Plaintiff alleges he suffered a physical disability as a result of this operation, and that defendants failed to adequately accommodate his condition by placing him in an unsanitary cell that leaked black water rather than place him in the Unit for the Physically Disabled ("UPD"). Plaintiff further contends that the reason behind defendants' decision to refuse him placement in the UPD was his disability, in violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12132, and his race — he claims he is "Spanish" — in violation of the Fourteenth Amendment's Equal Protection Clause. Veloz contends that these factors — his disability and race — also influenced defendants' decision to refuse to place him in Green Haven's Honor Block, apparently a preferred housing assignment.*fn1 Veloz further alleges that defendants denied him medical attention for sixty-nine days for an injured right wrist, and never provided him medical care for an injury to his left shoulder. Finally, he alleges defendants moved him from his cell and placed him in the prison gym for extended periods of time without providing him a private place to change his adult diaper while female correctional officers patrolled, in violation of the Eighth Amendment's cruel and unusual punishment clause.

Defendants the State of New York, Department of Correctional Services of the State of New York ("DOCS"), Dr. John Galeno — the doctor who performed surgery on Veloz — and seven individuals associated with DOCS — Christopher Artuz, Charles Greiner, Lawrence Zwillinger, Carl Joseph Koenigsmann, Sabrina Kaplan, Corrections Sergeant Goodman and Corrections Officer C. Butenhoff — now move for summary judgment pursuant to Federal Rule of Civil Procedure 56 on the grounds that: (1) plaintiff has failed to exhaust his administrative remedies for at least six of the eight claims as required by the Prison Litigation Reform Act of 1995, as amended, 42 U.S.C. § 1997e(a); (2) plaintiff has failed to exhaust his ADA claims with the United States Department of Justice; (3) plaintiff has failed to allege facts to support his contention that the delay in treatment for his spine, left shoulder, and right wrist resulted in any adverse medical effects, or that Dr. Galeno performed the spine operation with deliberate indifference that caused detrimental effect; (4) defendants Zwillinger, Koenigsmann and Kaplan were not personally involved in the alleged constitutional deprivations; (5) all the individual defendants are entitled to qualified immunity; and (6) this Court lacks jurisdiction over the subject matter of this action under the Eleventh Amendment.*fn2 For the reasons set forth, the motion is granted.

  I. The Standard for Summary Judgment

  Summary judgment will be granted only when the moving party demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (quoting Fed.R. Civ. P. 56(c)). The moving party must demonstrate "the absence of a genuine issue of material fact." Celotex v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986) (internal quotations and citation omitted). To survive a summary judgment motion, the non-moving party must "make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Id.; see Fed.R. Civ. P. 56(e). In determining whether summary judgment is appropriate, the district court "`must view the evidence in light most favorable to the non-moving party and draw all reasonable inferences in its favor.'" American Cas. Co. of Reading, Pa. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir. 1994) (quoting Consarc Corp. v. Marine Midlank Bank, N.A., 996 F.2d 568, 572 (2d Cir. 1993)). A grant of summary judgment is appropriate when no rational jury could find in favor of the non-moving party because there is no genuine issue of material fact based on the evidence in the record or the substantive law. Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1224 (2d Cir. 1994).

  Furthermore, where, as here, a party is proceeding pro se, a Court must read the pro se litigant's supporting papers liberally and interpret them "`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)). The application of this liberal standard does not, however, "relieve plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment." Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003).

  II. Exhaustion of Administrative Remedies

  A. Exhaustion within DOCS' grievance system

  The Prison Litigation Reform Act 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). In Porter v. Nussle, 534 U.S. 516, 532, 122 S. Ct. 983, 992 (2002), the United States Supreme Court held that the "PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or some other wrong." In its statutory analysis of the PLRA, the Supreme Court held in Booth v. Churner, 532 U.S. 731, 121 S. Ct. 1819 (2001), that exhaustion of administrative remedies is required regardless of the relief offered. Id. at 740-41, 121 S. Ct. at 1824-25. Porter mandates that every claim asserted by a prisoner must be grieved administratively prior to seeking judicial relief. Fields v. Brown, No. 02 Civ. 1178, 2002 WL 31202763, at *3 (S.D.N.Y. Oct. 1, 2002).

  The failure to exhaust available administrative remedies is an affirmative defense that may be waived if not raised. Johnson v. Testman, 380 F.3d 691, 696 (2d Cir. 2004). It is also subject to estoppel. Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004). When, as here, defendants raise this issue of exhaustion as a defense and plaintiff provides a plausible argument to counter their position, the Second Circuit has suggested that district courts follow a three-step inquiry. Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004). First, courts must determine "whether administrative remedies were in fact `available' to the prisoner." Id. (citing Abney v. McGinnis, 380 F.3d 663 (2d Cir. 2004)). Administrative remedies may be considered unavailable in cases where an inmate receives a favorable ruling through the administrative process and the prison system fails to implement the suggested remedy. Abney, 380 F.3d at 668-69. Since the administrative process does not provide a mechanism for appealing "implementation failures," and therefore no administrative remedy is available, prisoners in such a case have fully exhausted their administrative remedies. Id. at 669. Second, courts should inquire whether defendants waived the failure to exhaust this defense by not raising or preserving it, Hemphill, 380 F.3d at 686 (citing Johnson, 380 F.3d at 696), or whether defendants are estopped from raising this defense based on their own behavior, such as inhibiting an inmate from grieving. Id. (citing Ziemba, 366 F.3d at 163). Finally, courts should consider any "`special circumstances'" that may justify a prisoner's failure to exhaust remedies. Id. (quoting Giano v. Goord, 380 F.3d 670 (2d Cir. 2004)).

  New York State's Inmate Grievance Procedure ("IGP") has established a three-step inmate grievance process available to prisoners to exhaust their administrative remedies. See N.Y. Correct. Law § 139; N.Y. Comp. Codes R. & Regs. tit. 7, § 701. Generally, the regulations require that an inmate first file a complaint with the inmate grievance resolution committee ("IGRC") within fourteen days of the alleged event. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.7(a)(1). The IGRC must then investigate and resolve the complaint informally within seven days. Id. at § 701.7(a)(3). If there is no informal resolution, a hearing is held, and the inmate may appeal the result to the Superintendent of the facility within four days of receiving it. Id. at §§ 701.7(a)(4), (b). Finally, the inmate must appeal the Superintendent's decision to the Central Office Review Committee ("CORC") within four days of its receipt. Id. at § 701.7(c). The CORC, in turn, must render a decision within twenty days. Id. Complete exhaustion of the above administrative remedies through the highest level for each claim is required. Fields, 2002 WL 31202763, at *2-3 (section 1983 complaint dismissed for failure to exhaust when plaintiff failed to appeal the grievance to the CORC); see Santiago v. Meinsen, 89 F. Supp. 2d 435 (S.D.N.Y. 2000). An inmate may only pursue an action in federal court after exhausting "any available administrative remedies, including all appellate remedies provided." Waters v. Schneider, No. 01 Civ. 5217, 2002 WL 727025, at *1 (S.D.N.Y. Apr. 23, 2002) (citing Fletcher v. Haase, No. 99 Civ. 9549, 2002 WL 313799 (S.D.N.Y. Feb. 27, 2002)); see also Webb v. Goord, 192 F. Supp. 2d 208, 211 (S.D.N.Y. 2002).

  Defendants contend that Veloz failed to exhaust the following claims according to the grievance procedure afforded to inmates at Green Haven: (1) deliberate indifference to his left shoulder injury; (2) violation of plaintiff's Eighth Amendment rights by housing him in a cell with a black water leak; (3) violation of plaintiff's Eighth Amendment rights and racial discrimination by housing him in a gym on two separate occasions; (4) deliberate indifference and racial discrimination as to treatment of plaintiff's right wrist; and (5) discrimination against plaintiff based on his race and disability by denying his application for the Honor Block.

  Veloz contends that he did, in fact, exhaust his administrative remedies by placing grievances in the mail but that his grievances were either misplaced or destroyed. He further contends that since he does not maintain any control over the 15 to 20 different grievances he filed, he does not know which claims were received by the grievance committee and which ones were destroyed. In fact, Veloz contends he filed a grievance regarding the alleged destruction of grievances by DOCS officers, but this grievance was never set for a hearing. (Pl.'s Reply Brief at 1-2 & Ex. B.) Defendants allege that the grievances concerning Honor Block, the injury to his right wrist, the transfer to the gym on two occasions, and his placement in a cell with a black water leak, do not have the signature of the grievance clerk, a date stamp indicating when the grievance clerk received these grievances, or any other proof on the face of the forms evidencing the filing of these grievances by plaintiff. (Letter from Lee to the Court dated 1/8/04, at 1-2.) Defendants further argue that even assuming Veloz did file these grievances, he failed to appeal any of these claims to the next level. (Id.)

  B. Plaintiff's several grievances

  The record includes references to a number of grievances submitted by Veloz during his incarceration, but the Court will deal only with those relevant to the issues raised here. As to plaintiff's medical condition, he alleges he submitted a grievance on September 16, 1996 for poor medical treatment and requested an operation to ease his pain, but that no action was taken by the IGRC. (Pl.'s Reply Brief at 2.) On May 21, 1997, plaintiff filed a grievance (GH-37540) claiming he had not received proper medical care. (Lee Decl. Ex. B.) As a result of this grievance, plaintiff was given another evaluation. (Id.) On March 2, 1999, plaintiff had an operation. On March 5, 2001, plaintiff filed a grievance (GH-46316) requesting a new spine operation because of the pain and complications he experienced after his March 1999 operation. (Pl.'s Aff. Ex. B.) Since a neurologist who treated Veloz on February 26, 2001, did not recommend any follow-up, a new operation was not ordered but he was instructed to discuss medical concerns with his primary physician. (Id.) He appealed this decision, which was denied because evidence of his numerous visits with medical staff warranted the conclusion that he had received appropriate care.*fn3 (Id.)

  With respect to plaintiff's request to be housed in the UPD, he alleges he filed a grievance on an unidentified date, but it was denied. (Pl.'s Reply Brief at 4.) He further claims that he attempted to appeal this denial to defendant Masterson — the ADA coordinator at Green Haven — who allegedly signed a "declaration against plaintiff," and failed to provide plaintiff a copy to enable him to appeal the initial decision. (Id.) Plaintiff alleges he filed a second grievance on December 23, 2000 but that no action was taken. (Id. at 3 & Ex. H.) A third grievance (GH-51455) was filed on June 3, 2003, requesting a transfer to the UPD. (Lee Decl. Ex. B; Eagen Decl. Ex. A.) The denial of this grievance was appealed on August 28, 2003. (Id.) The record does not reveal if a decision was rendered on this appeal. As for plaintiff's fourth grievance regarding transfer to the UPD, filed on August 28, 2003 at Livingston Correctional Facility, the record does not indicate the decision rendered or if an appeal was taken.

  Plaintiff's request for transfer to the Honor Block was the subject of a January 9, 1996 grievance, but plaintiff alleges no action was taken on this grievance. (Pl.'s Reply Brief at 2 & Ex. C.) He alleges he submitted a grievance on July 24, 2001 regarding the black water leak in his cell, but no action was taken on that grievance either. (Id. at Ex. I.) In the July 24, 2001 grievance, plaintiff also raised his claim about the alleged injury to his right wrist, but no action was taken. (Id.) He alleges he filed three separate grievances in December of 1999 concerning his transfer from his cell to a gym on two separate occasions. (Pl.'s Stmt. ¶ 4; Pl.'s Reply Brief at 3 & Exs. F-G.) He also filed a claim regarding property that was damaged during his transfer to the gym. (Pl.'s Stmt. ¶ 4.) Finally, he offers no evidence or allegations regarding a grievance concerning the injury to his shoulder.

  C. Were DOCS' administrative remedies available to plaintiff?

  As an initial matter, administrative remedies were "available" to plaintiff "at the outset; that is, the prison provided grievance procedures that inmates . . . could utilize." Hemphill, 380 F.3d at 686; see O'Connor v. Featherston, No. 01 Civ. 3251, 2002 WL 818085, at *2 (S.D.N.Y. Apr. 29, 2002) (prisoners may be excused from fully exhausting administrative remedies when those remedies are not "available"). But that does not end the inquiry. When an inmate's reasonable attempts to exhaust available administrative remedies are impeded by a correctional officer, the remedy may be deemed unavailable, thereby excusing the inmate from technically exhausting his remedies. See, e.g., Palmer v. Goss, No. 02 Civ. 5804, 2003 WL 22327110 (S.D.N.Y. Oct. 10, 2003) (inmate who did not appeal a superintendent's decision when evidence favorable to the inmate's appeal was destroyed by hearing officer survived summary judgment motion); O'Connor, 2002 WL 818085, at *2 (inmate who was told by correctional officer to follow-up his claims through the Inspector General's Office rather than through the proper grievance procedure survived motion to dismiss complaint for failure to exhaust); Feliciano v. Goord, No. 97 Civ. 1263, 1998 WL 436358, *2 (S.D.N.Y. June 27, 1998) (inmate who complained to a sergeant about an assault, told the matter was not a grievance matter but a security matter, denied grievance forms, and assured the matter would be investigated, survived motion to dismiss complaint for failure to exhaust). An inmate seeking to be relieved from technically exhausting his administrative remedies must allege facts showing that he made reasonable attempts to exhaust his remedies. See Nunez v. Goord, 172 F. Supp. 2d 417, 428-29 (S.D.N.Y. 2001) (inmate's unsupported claims that his grievances were lost at the Grievance Committee Office or destroyed by officers thereby rendering his attempts to grieve futile, fails to excuse inmate from fully grieving remedies).

  Drawing all inference's in plaintiff's favor, the Court concludes that plaintiff failed to make reasonable attempts to fully exhaust his available administrative remedies as to his claims regarding his injury to his right wrist, his injury to his left shoulder, his placement in a cell with a black water leak, his transfer to the prison gym for an extended period of time on two separate occasions, and his denial to be transferred to the Honor Block. First, there is no evidence whatsoever that any of these grievances were filed with a grievance clerk: the signature of a grievance officer is not on any of the forms and there is no indication in the record that the grievance officer received any of the forms. Even assuming Veloz did submit the grievances, he offers no evidence that any particular officer thwarted his attempts to file; he simply contends that the practice of destroying or misplacing grievances must have been the cause of his grievances being lost. His allegations "stand alone and unsupported." Nunez, 172 F. Supp. 2d at 429. Third, plaintiff's allegation that these particular grievances were misplaced or destroyed by correctional officers ultimately does not relieve him of the requirement to appeal these claims to the next level once it became clear to him that a response to his initial filing was not forthcoming. See Martinez v. Williams, 186 F. Supp. 2d 353, 357 (S.D.N.Y. 2002) (inmate who allegedly received no response to grievance "could have and should have appealed grievance in accordance with grievance procedure"); Waters, 2002 WL 727025, at *1 (same).

  Plaintiff was most assuredly keenly aware of the grievance process, as he previously exhausted other claims to the highest level. (Lee Decl. Ex. B.) For the claims raised here, however, he does not offer any evidence that he appealed his grievances or that his attempt to do so was impeded in any way. (Pl.'s Reply Brief at 1-2.) Nor does he offer any evidence as to why he did not fully exhaust the unexhausted claims. Nunez, 172 F. Supp. 2d at 428. Accordingly, since plaintiff fails to allege that he fully exhausted any of these claims or that his reasonable attempts to exhaust were impeded by any particular officer, defendants' motion with respect to plaintiff's claims regarding the injury to his right wrist, his placement in a cell with a black water leak, his transfer to the prison gym for an extended period of time on two separate occasions, and his denial to the Honor Block, is granted. In addition, as plaintiff fails to offer any allegations regarding exhaustion of his claim with respect to the injury to his left shoulder, defendants' motion with regard to this ...

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