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December 17, 2004.

P.A. WILLIAMS R., Defendant.

The opinion of the court was delivered by: WILLIAM CONNER, Senior District Judge


Plaintiff Angel Martinez, proceeding pro se, commenced this action against defendant P.A. Philip Williams, a physician assistant who is an employee of the New York State Department of Correctional Services ("DOCS"). Martinez alleges that he suffered "multiple heart attacks" which Williams failed to diagnose. Martinez further alleges that his undiagnosed heart attacks were the cause of a "black out" which resulted in an eye injury. This action arises under and is brought pursuant to 42 U.S.C. § 1983 to remedy the deprivation, under color of state law, of rights guaranteed by the Eighth Amendment to the United States Constitution, by subjecting plaintiff to the cruel and unusual punishment of failing to provide him with adequate medical care. Defendant now moves to dismiss plaintiff's Complaint pursuant to FED. R. Civ. P. Rule 12(b)(6) for failure to state a claim upon which relief may be granted. Defendant contends that the Complaint should be dismissed on two asserted grounds: (1) plaintiff's failure to exhaust his administrative remedies; and (2) the untimeliness of the action, which was commenced after expiration of the three-year statute of limitations. For the reasons stated hereinafter, defendant's motion to dismiss is granted.


  I. Plaintiff's Factual Allegations

  Plaintiff is incarcerated at the Sing Sing Correctional Facility ("Sing Sing") serving a twenty-year sentence. (Complt. ¶ 2.) While incarcerated, plaintiff complained of pain in his chest and right arm.*fn1 (Id. ¶ 11.) On January 21, 2000, defendant conducted an examination of plaintiff's chest and right arm, which plaintiff alleges was a "superficial examination." (Id.) Defendant prescribed the medication "issorbide hintrate" (sic) to relieve plaintiff's pain; however, according to plaintiff the medication did not relieve his pain and suffering. (Id. ¶ 12.) Plaintiff alleges that he filed numerous sick-call requests to see defendant over several weeks, but was "ignored." (Id.) On an unspecified date in February 2000, plaintiff was examined by defendant a second time and continued to complain of severe chest and arm pain and also that the medication was not relieving his pain. (Id. ¶ 13.) Defendant suggested that plaintiff continue to take the prescribed medication. (Id.) However, plaintiff alleges that defendant "failed to properly examine or diagnose plaintiff's pain and suffering." (Id.)

  On February 7, 2000, while exiting his cell, plaintiff alleges that he "blacked out" and fell to the floor unconscious. (Id. ¶ 14.) As a result of the fall, plaintiff was taken to the emergency room of the institution, where it was determined that he sustained a severe right eye injury. (Id.) Plaintiff contends that defendant improperly diagnosed his "black out" "as the result of a common cold or `flu virus' . . . [and that he] was then given flu medication and an ice pack for his eye injury, and was placed on medical keep-lock status for five (5) days." (Id.) Plaintiff further alleges that he continued to complain about the pain in his chest, arm and right eye, but "in spite of his constant requests for a full examination to relieve him of his pain and suffering, P.A. Williams was `deliberately indifferent' to plaintiff's serious medical needs." (Id. ¶ 15.)

  On February 8, 2000, plaintiff again requested to be taken to the emergency room as he was suffering from pain in his chest and right eye. (Id. ¶ 16.) Plaintiff saw a nurse in the emergency room and alleges that the only examination conducted at that time principally consisted of timing his pulse rate and taking his temperature. (Id.) According to plaintiff, no extensive physical tests were conducted.

  On February 11, 2000, plaintiff was examined by Dr. Halk at Sing Sing, who, upon examination, transferred him to an outside hospital (St. Agnes in White Plains, New York), where he was eventually transferred to Westchester Medical Center for further examination. (Id. ¶¶ 17, 18.) Plaintiff's right eye injury was diagnosed as a fracture, and he underwent two surgeries to reconstruct his face and correct the damage of his eye injury. (Id. ¶ 19.) In addition, plaintiff alleges that the doctors at Westchester Medical Center determined that his "black out" was triggered or due to a heart attack, and upon examination, the doctors discovered plaintiff had three blocked coronary arteries that were causing the severe pain in his chest and arm. (Id. ¶¶ 19, 20.) Medication was prescribed to alleviate the coronary artery condition.

  On February 21, 2000, plaintiff was discharged back to Sing Sing where he remained in the facility hospital until March 20, 2000. (Id. ¶ 21.) Plaintiff is currently back in general population at Sing Sing and allegedly continues to suffer from constant pain in his chest and arm, and is taking prescribed medication. (Id.)

  Plaintiff seeks "an order declaring that the defendant acted in violation of the United States Constitution," "an injunction compelling defendants [sic] to provide adequate medical treatment" and $350,000 in compensatory damages. (Id. ¶¶ 22, 23, 24.)

  II. Procedural History

  Plaintiff previously brought an action (Martinez v. Williams, No. 01 Civ. 2642 (S.D.N.Y.)) against defendant based on the alleged misdiagnosis of plaintiff's medical condition and the ensuing consequences. See Martinez v. Williams, 186 F. Supp. 2d 353 (S.D.N.Y. 2002) ("Martinez I"). Martinez I was dismissed without prejudice by this Court for failure to exhaust administrative remedies. On November 20, 2002, this Court issued an Order reopening Martinez I to permit plaintiff to file an Amended Complaint; however, that Order was rescinded and the action was dismissed without prejudice. (Complt. ¶ 7.) Plaintiff was instructed that to pursue his claim, he must first exhaust his administrative remedies and then file a new action. (Id.; Order dated December 6, 2002 ("Final Order").)

  On July 10, 2003, more than seven months after the issuance of the Final Order (and more than three years after the events at issue), plaintiff filed a grievance pursuant to the state prisoner grievance procedure. (Complt., Ex. B; Def. Mem. Supp. Mot. Dismiss at 4.) Plaintiff's grievance was denied because it was not filed within fourteen days of the Court's Final Order as prescribed by Directive #4040, and plaintiff failed to offer any mitigating circumstances that would allow acceptance of the late grievance. (Def. Mem. Supp. Mot. Dismiss at 4; Complt., Ex. B.) After twice attempting to file the grievance and being told that "the mitigating circumstances presented are not sufficient to file the grievance," plaintiff sent a "Grievance Appeal" to Superintendent Fischer, which was also rejected for failure to present mitigating circumstances explaining the delay. (Def. Mem. Supp. Mot. Dismiss at 4 (citing August 6, 2003 Memorandum from Paul Kikendall, Acting Superintendent).) Lastly, prior to filing this action, on August 15, 2003, plaintiff sent correspondence to Thomas Eagen, the Director of the Inmate Grievance Program, regarding the rejection of his grievance. (Pl. Aff. Opp. Mot. Dismiss at 2; Def. Mem. Supp. Mot. Dismiss at 4.) Eagen responded via letter and explained that the grievance was rejected because it was not filed within fourteen days of the Court's Final ...

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