The opinion of the court was delivered by: LAWRENCE McKENNA, District Judge
Plaintiff James Brown, incarcerated at the Green Haven
Correctional Facility ("Green Haven") of the New York State
Department of Correctional Services ("DOCS") from January of 1992
until August 23, 1996, and from March 14, 2001 to the present,
brings this action under 42 U.S.C. § 1983 against Carl
Koenigsmann, M.D. employed by DOCS presently as Regional
Medical Director for a number of DOCS facilities in the Sullivan
and Great Meadow regions, and previously, from March of 1999 to
April of 2003, Facility Health Services Director for Green Haven
alleging deliberate indifference to his serious medical
condition in violation of the Eighth Amendment to the Constitution of the
Defendant moves, pursuant to Fed.R.Civ.P. 12(b)(6), for
dismissal of the amended complaint, asserting that (i) plaintiff
failed to exhaust available administrative remedies, (ii) the
amended complaint fails to allege personal involvement by Dr.
Koenigsmann in the conduct claimed to have violated plaintiff's
rights, (iii) plaintiff cannot demonstrate that Dr. Koenigsmann
treated plaintiff with deliberate medical indifference, and (iv)
Dr. Koenigsmann is entitled to qualified immunity. (Def. Mem. at
The Court earlier denied a motion by defendant pursuant to Rule
12(b)(6), made on the ground of failure to exhaust administrative
remedies. See Brown v. Koenigsmann, No. 01 Civ. 10013, 2003
WL 22232884 (S.D.N.Y. Sept. 29, 2003), familiarity with which is
The exhaustion requirement of 42 U.S.C. § 1997e(a) "applies to
all inmate suits about prison life," Porter v. Nussle, 534 U.S. 516, 532 (2002), including this one. Here, plaintiff
alleges that he "has made every available attempt to exhaust his
administrative remedies but did not receive any response when
appealing." (Am. Comp. ¶ II.C.) In its 2003 decision the Court
found that there was an issue of fact as to exhaustion which
prevented dismissal under Rule 12(b)(6). Brown, 2003 WL
22232884, at *3.
Defendant now raises two exhaustion arguments. First, he says
that, whatever the case may have been in 2003, dismissal for
failure to exhaust is required under Ziemba v. Wezner,
366 F.3d 161 (2d Cir. 2004). Then he urges that, whatever the case may be
concerning exhaustion of plaintiff's claim that defendant denied
him surgery for his right eye, plaintiff's claim regarding
unnecessary surgery (Am. Comp. ¶ 17) is clearly not
In Ziemba, the Second Circuit, "[a]s a matter of first
impression in this circuit," held "that the affirmative defense
of exhaustion is subject to estoppel." 366 F.3d at 163.
Here, defendant argues that, "because Dr. Koenigsmann had no
involvement in DOCS grievance procedures or plaintiff's efforts
to exhaust these procedures, there is no basis to estop Dr.
Koenigsmann from raising the exhaustion defense." (Def. Mem. at
14.) In this case, there are no allegations in the
[amended complaint] that Dr. Koenigsmann himself
"prevented" [plaintiff] from exhausting his
administrative remedies through threats or any other
form of intimidation or misconduct. See Ziemba
366 F.3d at 162. Unlike the actions by defendants in
Ziemba, there was no conduct by Dr. Koenigsmann
which can be said to estop him from asserting the
exhaustion defense. Accordingly, the Court should
grant defendant's motion to dismiss for failure to
In the present case, there is evidence that plaintiff initiated
a grievance seeking a "new operation" in his remaining eye, the
right; that when the Inmate Grievance Committee did not address
the request for the operation, plaintiff appealed to the
Superintendent, and that when the Superintendent did not address
the request for the operation, plaintiff filled out the form
provided for appeal to the Central Office Review Committee
("CORC"), and sent it to the Grievance Clerk; and that thereafter
plaintiff inquired several times of the Grievance Clerk as to the
status of the appeal. (Pl. Mem. Exhibits A, A-1, B, C, D, E, F &
G; see also Brown, 2003 WL 22232884, at *1.) The appeal, it
appears, was not acted on. There is certainly an issue of fact as
to whether or not the Inmate Grievance Program is responsible for
plaintiff's failure to obtain a determination at the Program's
third and final level, CORC. Plaintiff does not assert that Dr.
Koeingsmann personally was responsible for whatever happened to
plaintiff's appeal in the Inmate Grievance Program. Nothing in Ziemba, however, requires that the action or
inaction which is the basis for the estoppel be that of the
particular defendant in the prisoner's case. In Ziemba, "the
district court [was] directed to consider Ziemba's claim that
estoppel bars the State's assertion of the exhaustion defense."
366 F.3d at 163-64 (emphasis added). In Wright v.
Hollingsworth, 260 F.3d 357 (5th Cir. 2001), the holding of
which the Second Circuit adapted in Ziemba, 366 F.3d at 163
(quoting Wright, 260 F.3d at 358 n. 2), the defendant was a
prison nurse. Ziemba does not require a showing that Dr.
Koenigsmann is personally responsible for plaintiff's failure to
complete exhaustion, as long as someone employed by DOCS is. If
that reading of Ziemba is incorrect, however, cf. Hemphill
v. New York, 380 F.3d 680, 689 (2d Cir. 2004), then the
circumstances here must be regarded as special, and as justifying
the incompleteness of exhaustion, since a decision by CORC is
hardly something plaintiff could have accomplished on his own.
See id., 380 F.3d at 689 (quoting Giano v. Goord,
380 F.3d 670, 676 (2d Cir. 2004)).
As to defendant's second argument that plaintiff has failed
to exhaust a claim for unnecessary laser surgery plaintiff has
made it clear that his amended complaint is not intended to
assert such a claim. (Pl. Mem. at 6, 44.)*fn4 3.
Defendant next argues that plaintiff has not alleged personal
involvement on his part in relation to the laser surgery claim.
As already noted, however, plaintiff has made it clear that ...