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August 9, 2005.

JAMES BROWN, Plaintiff,
CARL J. KOENIGSMANN, M.D., s/h/a DR. CARL KOENIGSMANN, Medical Director of Green Haven Correctional Facility, Defendants.

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 United States.*fn1

  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 1-2.)

  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 here assumed.*fn2


  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 exhausted.*fn3

  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 exhaust.


  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 ...

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