The opinion of the court was delivered by: Hurley, District Judge
Presently before the Court is the motion by defendants New York City Department of Corrections ("DOC") and Gerod O'Gara ("O'Gara") (collectively, "Defendants") for an Order dismissing the Second Amended Complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6). For the reasons stated below, the motion is denied in part and granted in part.
Plaintiff Gerod Mobley ("Plaintiff") commenced this action pro se on November 25, 2002 in the United States District Court for the Southern District of New York. Plaintiff's case was subsequently transferred to this Court and on March 26, 2003, Plaintiff filed an Amended Complaint. By Memorandum of Decision and Order dated August 11, 2004, the Court granted Defendants' motion to dismiss the Amended Complaint based upon Plaintiff's failure to allege exhaustion of administrative remedies and granted Plaintiff leave to file a Second Amended Complaint. On October 5, 2004, Plaintiff filed a Second Amended Complaint.
Plaintiff alleges that he was incarcerated in the George R. Vierno Center at Riker's Island, also known as "the Beacon," which is operated by the DOC. (Second Am. Compl. ¶ 4.) Sometime between August 14, 2000 and August 25, 2000, Plaintiff allegedly got into an altercation with an unnamed inmate who Plaintiff alleges is of Hispanic nationality. (Id. ¶ 7.) As a result of this fight, the unnamed inmate was transferred to a different housing unit to avoid a recurrence of the altercation. (Id. ¶ 8.) Plaintiff, however, remained in the same housing unit, allegedly with friends of the unnamed inmate. (Id.) Plaintiff alleges that x-rays were taken of his hip on August 26, 2000, and that they revealed no fracture. (Id. ¶ 10.)
On an unspecified date after the first fight, Plaintiff alleges that he was attacked by other inmates who were friends of the inmate with whom Plaintiff had his original fight. (Id. ¶ 11.) Although Plaintiff claims that the DOC Emergency Response Team "stopped the attack," (id. ¶ 12), he further alleges that untrained and unsupervised DOC employees tried to pick him up and with the assistance of other inmates, moved Plaintiff down approximately fifteen to twenty steps to a stretcher, causing Plaintiff to suffer further injuries. (Id. ¶¶ 13-14.) Plaintiff admits that "the John Doe Doctors Ordered, and the Corrections Officers called an ambulance, but it did not arrive until 8 hours later, and the Plaintiff was in severe pain the entire time." (Id. ¶ 15.)
As best the Court can decipher from his pleading, Plaintiff was treated at East Elmhurst Hospital on November 30, 2000, where doctors reviewed x-rays of Plaintiff's hip and called in an orthopedic surgeon. (Id. ¶ 16.) The next day, on December 1, 2000, Plaintiff underwent surgery, during which he allegedly lost a great deal of blood requiring a blood transfusion. (Id.) Plaintiff stayed in the hospital for four days and was discharged back to the Riker's Island Medical Unit on December 5, 2000. (Id. ¶ 17.) Plaintiff claims he was placed in a medical housing unit where he stayed wheelchair bound for six days until December 11, 2000, when he released from DOC custody to "go home." (Id. ¶ 18.)
Although Plaintiff's original and amended complaints did not allege that he filed a grievance during his time at Riker's Island, Plaintiff now alleges that he wrote two complaints to the "grievance office" on his third day in the medical unit but never received a response back. (Id. ¶ 19.)
Plaintiff asserts the following claims: (1) O'Gara violated Plaintiff's Eighth Amendment right by failing to oversee "the proper execution of the rules" by his subordinates, including "being deliberately indifferent to [Plaintiff's] [s]erious [m]edical needs"; (2) Defendants John and Jane Doe Doctors and Nurses in the Medical Department at the DOC violated Plaintiff's Eighth Amendment right by misdiagnosing and refusing to provide Plaintiff with adequate medical care; and (3) defendant "Vismole" and John and Jane Doe Corrections Officers violated Plaintiff's Eighth Amendment right by providing medical services and opinions although they were not trained to do so; and (4) all defendants violated various state law torts and general Constitutional guarantees. Defendants move to dismiss the Second Amended Complaint in its entirety, arguing that Plaintiff failed to exhaust his administrative remedies and that he fails to state a claim as a matter of law. The Court will address Defendants' arguments in turn.
I. Applicable Law and Legal Standards
The court may not dismiss a complaint under Rule 12(b)(6) 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. King v. Simpson, 189 F.3d 284, 286 (2d Cir. 1999); Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). The Court must accept all factual allegations in the proposed complaint as true and draw all reasonable inferences in favor of the plaintiff. King, 189 F.3d at 287; Jaghory v. New York State Dep't. of Educ., 131 F.3d 326, 329 (2d Cir. 1997). The Court must confine its consideration "to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Leonard F. v. Israel Disc. Bank, 199 F.3d 99, 107 (2d Cir. 1999); Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999). Finally, when the plaintiff proceeds pro se, as in this case, the Court is obliged to construe his pleadings liberally. See McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004).
II. Exhaustion of Administrative Remedies
A. Applicable Legal Standards
The Prison Litigation Reform Act of 1995 ("PLRA") provides that "[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 jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The exhaustion requirement applies to "all inmate suits about prison life whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
In Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004), 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." Id. at 686. First, the Court must investigate "whether administrative remedies were in fact 'available' to the prisoner." Id. (citation omitted) Next, the Court should "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." Id. (citations omitted). Finally, if the Court finds that administrative remedies were available and that there are no reasons why defendants have forfeited or should be estopped from raising a ...