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United States District Court, W.D. New York

October 21, 2004.


The opinion of the court was delivered by: JOHN T. ELFVIN, Senior District Judge


Joseph Parker filed this suit on June 7, 2004 in New York State Supreme Court, County of Wyoming. Defendants removed this action to this Court on June 15, 2004. Parker asserts claims for alleged violation (1) of Section 500-h of New York Correction Law as a result of defendants' negligence and (2) of Parker's "rights under the New York State and United States Constitutions" as a result of defendants' improper supervision of their employees. Defendants filed a motion to dismiss on June 28, 2004.*fn2 The motion was argued and submitted on October 8, 2004. For the reasons set forth below, defendants' motion to dismiss will be granted and plaintiff's remaining state law claims will be dismissed without prejudice. When ruling on a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure this Court "must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor."*fn3 Moreover, a motion to dismiss cannot be granted "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."*fn4 Accordingly, this Court must not consider whether the claims will ultimately be successful, but merely "assess the legal feasibility of the complaint."*fn5 Moreover, when reviewing a motion to dismiss, this Court must of course limit its review to the face of the Complaint and documents incorporated therein that are properly subject to judicial notice.*fn6

Parker was incarcerated at the Wyoming County Jail from November 25, 2002 to May 20, 2003.*fn7 While incarcerated, Parker suffered an infection in his teeth and jaw. Parker asked to see a physician or dentist, but was instead referred to the jail nurse and received ibuprofen. Parker alleges such to have been an improper and inadequate treatment, causing his infection and pain to worsen. Eighty-six days later, and through his parents' intercession, Parker was taken to the emergency room at the Warsaw Hospital. The examining physician directed that Parker be taken to a dentist. Defendants, however, refused to allow Parker to consult a dentist until Parker's parents agreed to pay for the treatments — which they agreed to do. Parker consulted a dentist, who removed two infected teeth and prescribed antibiotics and pain medications.

  Parker alleges that defendants' conduct violated Part 7010 of the State of New York Commission of Correction Minimum Standards for Local Correctional Facility. Compl. ¶ 17. The Complaint asserts two causes of action. Parker's first cause of action is that defendants negligently "failed to properly supervise and/or provide the supervision of their employees, thereby causing plaintiff to suffer severe pain and agony for a period in excess of 86 days." Id. at ¶ 20. Parker also asserts that defendants "knew, or were in a position to know and should have known of Plaintiff's medical condition and negligently failed to provide for his health, care, and protection." Id. at ¶ 21. Parker's second cause of action is that defendants "subject[ed] Plaintiff to cruel and inhuman treatment in direct violation of his rights under the New York State and United States Constitutions." Id. at ¶ 24 (emphasis added).

  Defendants seek dismissal of Parker's federal claim*fn8 based on an alleged failure to exhaust his administrative remedies. The Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a) ("Section 1997e(a)"), mandates that "[n]o action shall be brought with respect to prison conditions * * * by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." (Emphasis added.) The Court of Appeals, however, has held that litigants "who file prison condition actions after release from confinement are no longer `prisoners' for purposes of § 1997e(a) and, therefore, need not satisfy the exhaustion requirements of this provision."*fn9 Whether Parker was incarcerated when he filed this suit is a factual determination that may not be made on a motion to dismiss.*fn10 Consequently, defendants' motion to dismiss will therefore be denied on this ground.*fn11

  Defendants also seek dismissal on the ground that the Complaint failed to allege either (1) personal involvement by Sheriff Heimann or (2) that defendants' actions were "performed pursuant to a municipal policy or custom." Defs.' Memo. of Law, at 4-8. Moreover, Parker's counsel noted at oral argument that Parker prefers to litigate this action in state court because he intended this action to sound in negligence. Consequently, this Court will dismiss Parker's Section 1983 claim without prejudice for failure to plead allegations necessary to support his Section 1983 claim.*fn12 Furthermore, having dismissed Parker's federal claim, this Court declines to exercise jurisdiction over his remaining state law claims.*fn13

  Accordingly, it is hereby ORDERED that defendants' motion to dismiss is granted, that plaintiff's section 1983 claim is dismissed without prejudice, that plaintiff's state law claims are dismissed without prejudice and that the Clerk of this Court shall close this case.

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