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United States District Court, S.D. New York

February 8, 2005.


The opinion of the court was delivered by: DENISE COTE, District Judge


Plaintiff Inger Leacock ("Leacock") brings this pro se action alleging that defendants exhibited deliberate indifference to a serious medical need in violation of 42 U.S.C. § 1983 ("Section 1983"). Collectively, the City of New York, New York City Health & Hospitals Corporation, and St. Barnabas Correctional Health Services (the "City Defendants") have moved Page 2 to dismiss plaintiff's claims on the grounds that plaintiff has failed to exhaust her administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), and has failed to state a claim upon which relief can be granted. Because Leacock was transferred from City to State custody the day after her cause of action arose, and for the additional reasons detailed below, the City Defendants' motion to dismiss is denied.


  The following facts relevant to this motion to dismiss are taken from plaintiff's second amended complaint. On the evening of April 27, 1999, while Leacock was incarcerated at Rose M. Singer Correctional Facility at Rikers Island, another inmate pushed her against the metal frame of a bed, breaking her right knee cap. As Leacock was unable to walk, corrections officer John Doe carried her to the clinic at St. Barnabas Hospital Correctional Health Services, at which she waited for nine hours to be seen by a physician, Dr. Calderone, while her knee swelled with blood. During her evaluation by Dr. Calderone, Leacock received an injection of pain medication, and she then waited two additional hours to see a bone specialist, a Dr. John Doe, on the morning of April 28. Page 3

  After Dr. Doe examined Leacock, he told her that she should stay in the infirmary overnight and then should receive X-rays in the morning. Upon hearing this, the corrections officer accompanying Leacock, Officer Watkinson, informed Dr. Doe that Leacock was scheduled to be transferred the next day to Bedford Hills Correctional Facility ("Bedford Hills"), which is operated by the New York State Department of Corrections ("DOCS"). The bone specialist replied that Leacock could not be transferred in her condition. Despite the specialist's instructions, Officer Watkinson and/or Dr. Calderone wrote in Leacock's file that her knee was merely swollen, thus paving the way for her transfer to Bedford Hills. Rather than being kept in the infirmary, Leacock spent the night of April 28 in her cell and arrived at Bedford Hills on April 29, 1999.

  Upon her arrival at Bedford Hills, Leacock was taken to see a nurse, who determined that a doctor should evaluate Leacock's knee. After she saw the nurse, however, several days passed before Leacock saw a doctor. Nevertheless, Bedford Hills staff housed Leacock in an area accessible only by stairs, and she was able to move from place to place only by having other inmates carry her. Given her inability to walk up and down the stairs and her increasing pain, Leacock requested that Deputy Johnson move her to the infirmary, but that did not happen. Page 4

  On or around May 3, 1999, X-rays were taken of Leacock's knee and it was determined that her knee was broken. Accordingly, Leacock was taken to Bedford Hills Regional Medical Center, where a second doctor repaired her knee. Leacock alleges that she still suffers pain in her knee, especially when it rains and in the cold.

  Procedural History

  Plaintiff's complaint was received by the Pro Se Office of this District on October 23, 2000. Through an April 4, 2001 Order, the Honorable Michael B. Mukasey, to whom this case was initially assigned, directed


the Corporation Counsel and the Attorney General to ascertain from documents created at the time of the events described in the complaint the identities of the medical providers and officers whom plaintiff seeks to sue here and, if they can be identified, to provide addresses where each individual can be served.
Chief Judge Mukasey's Order further directed the Corporation Counsel and Attorney General to "produce the relevant incident and medical reports to the plaintiff and the Court (to the Pro Se Office) on or before April 20, 2001." Finally, Judge Mukasey allowed the plaintiff thirty days after the receipt of the above-described information to file an amended complaint, in which she was required to state "who denied, delayed, or interfered with her medical care." Page 5

  Approximately two years later, on June 19, 2003, Judge Mukasey issued another Order, in which he observed that both the Attorney General and the Corporation Counsel produced the requested medical records during the summer of 2001.*fn1 Judge Mukasey noted that although plaintiff had attempted to file an amended complaint, it was neither timely nor did it sufficiently identify the individual defendants, as required by his April 4, 2001 Order. As a result, the June 19, 2003 Order directed plaintiff to file an amended complaint that reflected the individual defendants and detailed her exhaustion of available administrative remedies. This Order also described the grievance processes available within both the New York City Department of Correction ("DOC") and DOCS, specifying that an inmate is "required to pursue her institutional remedies even if she may ultimately be found to be time-barred from pursuing this administrative process or she is seeking a remedy that cannot be awarded by the administrative proceeding." Pursuant to this order, Leacock filed an amended complaint on July 2, 2003.

  On December 18, 2003, Judge Mukasey issued a third order, in which he observed that plaintiff's amended complaint "fails to Page 6 name as defendants in the caption of the complaint the corrections officials who were deliberately indifferent to her medical needs" and granted her an additional thirty days to "identify as defendants the individual responsible in both the CAPTION and the body of her complaint." (Emphasis in original.) In addition, the December 18 Order directed Leacock to "state the steps she has taken to exhaust her administrative remedies as directed by the June 25, 2003 order."

  On January 28, 2004, Leacock submitted her second amended complaint. As with her previous complaints, she utilized a form provided by the Southern District to aid prisoners in filing Section 1983 actions. In response to questions asked on the form, Leacock indicated her awareness of a prisoner grievance procedure within DOCS and stated that she presented the facts relating to her complaint through that process. With respect to the steps that she took, however, Leacock wrote only, "I file my grievance." The result of Leacock's grievance was not described; instead, Leacock wrote, "And grievance is not working for the inmates; they are working with the jail." In response to a question asking for details as to why the inmate's grievance was denied, Leacock wrote, "Doing illegal scams with the jail and unfairly judge inmates and grievance suppose to be fore inmates but they are not." (as in original). Page 7

  On February 18, 2004, this action was assigned to this Court. On July 7, 2004, the City Defendants moved to dismiss Leacock's complaint, pursuant to Rules 12(b)(1) and (b)(6), Fed.R. Civ. P., on the grounds that as Leacock failed to properly exhaust her administrative remedies, this Court lacks jurisdiction over her complaint, and that her complaint fails to state a claim for violation of the Eighth Amendment stemming from deliberate indifference to a serious medical need. Both Leacock and the City Defendants filed their respective opposition and reply briefs by August 20, which was within the time allotted to each side by a July 15 Order.

  On October 26, this Court issued an Order observing that a mere two days after the City Defendants submitted their reply brief, the Second Circuit issued five decisions clarifying the circumstances under which a prisoner plaintiff may proceed with a claim dealing with prison conditions despite her failure to exhaust. See Abney v. McGinnis, 380 F.3d 663 (2d Cir. 2004); Giano v. Goord, 380 F.3d 670 (2d Cir. 2004); Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004); Johnson v. Testman, 380 F.3d 691 (2d Cir. 2004); Ortiz v. McBride, 380 F.3d 649 (2d Cir. 2004). Given the importance of these cases and the parties' inability to consider them in submitting their memoranda of law, the October 26 Order directed the parties to submit supplemental memoranda. On November 12, the Court extended both parties' time Page 8 to submit their supplemental briefs. Leacock submitted her brief on December 1. Having already submitted their brief on November 12, the City Defendants did not avail themselves of the extra time allotted; therefore, their submission does not respond to Leacock's supplemental brief, which furnishes additional information about her efforts to exhaust and is discussed infra.


  "It is well-established that when a plaintiff proceeds pro se . . . a court is obliged to construe his pleadings liberally, particularly when they allege civil rights violations." Hemphill, 380 F.3d at 687 (citation omitted). A pro se complaint may not be dismissed for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Thompson v. Carter, 284 F.3d 411 (2d Cir. 2002) (citation omitted).*fn2 Page 9

  I. Exhaustion

  The "dominant concern" of the PLRA is "to promote administrative redress, filter out groundless claims, and foster better prepared litigation of claims aired in court." Porter v. Nussle, 534 U.S. 516, 528 (2002). Under the PLRA, "[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) (emphasis supplied). It is well-settled that "exhaustion under the PLRA is not jurisdictional." Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004); see also Ortiz v. McBride, 380 F.3d 649, 656 (2d Cir. 2004).

  In Hemphill, the Second Circuit set forth a three-part inquiry that courts should use when an inmate "plausibly seeks to counter defendants' contention that the prisoner has failed to exhaust available administrative remedies as required by the PLRA." Hemphill, 380 F.3d at 686. First, the court must investigate "whether administrative remedies were in fact `available' to the prisoner." Id. The test for the availability of administrative remedies is "an objective one: that is, would a similarly situated individual of ordinary firmness have deemed them available." Id. at 688 (citation omitted). In determining Page 10 whether administrative remedies are available to a particular inmate, a court should also "be careful to look at the applicable set of grievance procedures, whether city, state, or federal." Abney, 380 F.3d at 668 (citation omitted) (emphasis supplied). Administrative remedies are not available "where the relevant administrative procedure lacks authority to provide any relief or to take any action whatsoever in response to a complaint." Booth, 532 U.S. at 736.

  If a court determines that administrative remedies were available, it should also "inquire as to whether the defendants may have forfeited the affirmative defense of non-exhaustion by failing to raise or preserve it, or whether the defendants' own actions inhibiting the inmate's exhaustion of remedies may estop one or more of the defendants from raising the plaintiff's failure to exhaust as a defense." Hemphill, 380 F.3d at 386. Finally, if a court finds that administrative remedies were available and that there are no reasons why defendants have forfeited or should be estopped from raising a non-exhaustion defense, "the court should consider whether special circumstances have been plausibly alleged that justify the prisoner's failure to comply with administrative procedural requirements." Id. (citation omitted).*fn3 Page 11

  In her supplemental brief, Leacock argues that administrative remedies were unavailable to her with respect to her claim against the City Defendants as she was transferred to Bedford Hills within a day of the conduct complained of in this action. Leacock further states that once she arrived at Bedford Hills, she "wrote a letter to grievance" and that a Ms. Stone, who served as Grievance Supervisor at Bedford Hills, told her that the DOCS grievance process only deals with state issues. To support this understanding, Leacock offers excerpts from DOCS Directive 4040, which outlines the inmate grievance process for New York State. Specifically, Leacock highlights a passage defining a grievance as "a complaint about the substance or application of any written or unwritten policy, regulation, procedure, or rule of the Department of Correctional Services or any of its program units, or the lack of a policy, regulation, procedure, or rule." (emphasis supplied). Leacock also directs the Court's attention to a subsection of Directive 4040 entitled "Outside Agencies Excluded," which states:

  Since other agencies (e.g. the Division of Parole, Immigration and Naturalization Services, the Office of Mental Health, etc.) are not under the supervision of the Commission of the Department of Correctional Services, any policy, regulation, or rule of outside Page 12 agencies, or action taken by an outside agency, is not within the jurisdiction of this grievance procedure.*fn4

  None of the five recent Second Circuit decisions regarding the PLRA's exhaustion requirement addresses the precise issue facing this Court: whether an inmate's transfer from the custody of one jurisdiction to that of another deprives the inmate of available administrative remedies and thus excuses the inmate's obligation to exhaust such remedies as required by the PLRA. In two other recent decisions, however, the Circuit has already ruled that an inmate must be "within the custody of the agency against which he had grievances" for an agency's administrative remedies to be available to him. Berry v. Kerik, 366 F.3d 85, 88 (2d Cir. 2004). In Berry, the plaintiff remained in city custody for a significant period following the incident, possessed "ample opportunity" to use the available administrative remedies, and presented "no special circumstances justif[ying] failure to exhaust." Id. The inmate in Berry was in city custody for three periods of "several" months, nine months, and three more months after the onset of the conditions of which he complained. Id. The Berry court did not include in its calculations of the time available to him the period following his transfer to state Page 13 custody. Id. Berry expressly reserved judgment on whether a plaintiff is required to exhaust her administrative remedies "where only a brief interval elapses between the episode giving rise to the prisoner's complaint and the prisoner's transfer to the custody of another jurisdiction." Id. at 88 n. 3. See also Burns v. Moore, No. 99 Civ. 0966 (LMM) (THK), 2002 WL 91607, at *5 (inmate remained in city custody for two months following incident). In Rodriguez v. Westchester County Jail Correctional Department, 372 F.3d 485 (2d Cir. 2004), the Second Circuit held that an inmate's transfer from county to state custody rendered administrative remedies unavailable to him for an incident that occurred while he was confined in a county facility. Id. at 488.*fn5

  Given that Leacock was transferred to Bedford Hills the morning after the City Defendants allegedly exhibited deliberate indifference to her shattered knee cap, the DOC grievance process was no longer "available" to her as a legal matter. Moreover, the City Defendants have not shown that Leacock could have used the DOCS procedures to complain about the incidents at Riker's Page 14 Island. Even assuming that the administrative remedies offered by the state correctional system were technically available to her to complain of the violation of her rights when she was in the custody of DOC, something that the City Defendants have not shown to be true, Leacock's "failure to [use that process] was justified by [her] reasonable belief that DOCS regulations foreclosed such recourse." Giano, 380 F.3d at 678. An inmate would have reasonably concluded, particularly after consulting DOCS Directive 4040, that a complaint lodged against city officials was not grievable within the state system and therefore that administrative remedies were not available.

  It is true that where an inmate complains of an incident or conduct that occurred while in city custody and is later returned to city custody, the Second Circuit has found that administrative remedies are available to that inmate. So long as an inmate is "within the custody of the agency against which he had grievances . . . he [is] required to use available grievance procedures," even if his grievance is no longer timely.*fn6 Berry, 366 F.3d at 88. Page 15

  The City Defendants contend in their supplemental brief that as Leacock returned to Riker's Island on June 8, 1999, and remained there until June 17, administrative remedies were available to her. They have not offered, however, any documentary evidence of Leacock's having been in city custody at any time after April 29, 1999, the date of her transfer to Bedford Hills.

  The City Defendants argue that even if administrative remedies were unavailable to Leacock to address her claims against the City Defendants, her complaint should be dismissed due to Leacock's failure to exhaust her claims against any State Defendants. In Ortiz, the Second Circuit declined to impose a so-called total exhaustion rule. See Ortiz, 380 F.3d at 663. Where a prisoner fails to exhaust one claim but also presents exhausted claims within the same action, a district court is expected "in the ordinary case" to address the exhausted claim and dismiss the unexhausted claim without prejudice. Id. The Honorable Gerard E. Lynch recently noted in dicta that where "exhausted and unexhausted claims are so intertwined that exhaustion should be required," it may be preferable to dismiss the entire action without prejudice. Warren v. Purcell, No. 03 Civ. 8736 (GEL), 2004 WL 1970642, at *5 (S.D.N.Y. Sept. 3, 2004).

  While Leacock has alleged that both city and state correctional employees were deliberately indifferent to her Page 16 serious medical needs, she has alleged different facts with respect to each group. With respect to the City Defendants, her principal allegations are that either Dr. Calderone or Officer Watkinson authorized her to be transferred to Bedford Hills despite the bone specialist's clear instructions that she could not be transferred in her condition and needed to have X-rays and despite her tremendous and visible pain. Leacock's claims against the state defendants are different, revolving primarily around her placement in a facility navigable only by stairs and their multiple-day delay in having her seen by a physician. As these claims are "entirely severable" from one another, dismissal of Leacock's claims against the City Defendants is neither appropriate nor required.

  II. Deliberate Indifference to a Serious Medical Need

  In addition to moving to dismiss due to Leacock's alleged non-exhaustion, the City Defendants have also moved to dismiss for failure to state a claim, contending that Leacock's complaint does not establish "deliberate indifference to [her] serious medical needs," as is required to prove an Eighth Amendment claim. Smith v. Carpenter, 316 F.3d 178, 183 (2d Cir. 2003) (citation omitted).

  Leacock's complaint describes a lengthy delay in treating a condition that, by her own account, produced severe swelling and Page 17 pain in her knee, rendered her unable to walk, and necessitated her being carried by a corrections officer to the health clinic. Once the bone specialist evaluated her, he ordered that Leacock receive X-rays the next day, that she should stay in the infirmary overnight, and that she was in no condition to be transferred to state custody on April 29. All of these instructions were not only ignored by prison officials, but Leacock has further alleged that her medical and/or correctional file was altered so that she could be transferred in spite of the specialist's instructions. On these facts, Leacock has sufficiently pled a violation of the Eighth Amendment stemming from deliberate indifference to a serious medical need.*fn7


  For the reasons stated above, the City Defendants' motion to dismiss is denied.


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