The opinion of the court was delivered by: Sweet, D.J.
Defendant Doctor Felicitas Miraflor ("Dr. Miraflor"), staff physician at Otisville Correctional Facility ("Otisville"), an employee of the New York State Department of Correctional Services ("DOCS"), has moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the complaint of plaintiff pro se Richard Cole ("Cole" or the "Plaintiff") alleging violation of 42 U.S.C. § 1983 and seeking compensatory damages for alleged deliberate indifference to his serious medical needs by Dr. Miraflor. For the reasons set forth below, the motion is granted.
On March 26, 2002, this Court dismissed Cole's action against Dr. Miraflor, Cole v. Dr. Miraflor, 195 F. Supp. 2d 496 (S.D.N.Y. 2002) without prejudice, based on Cole's failure to exhaust his administrative remedies. On December 18, 2002, Cole filed this action against Dr. Miraflor, involving the same claim raised in his previously dismissed lawsuit. On July 23, 2003, this Court granted the Defendant's motion to dismiss the complaint, with prejudice, pursuant to Rule 12(b)(1) of the Fed. R. Civ. P., based on Cole's failure to exhaust his administrative remedies. See Cole v. Miraflor, No. 02 Civ. 9981 (RWS), 2003 U.S. Dist. LEXIS 12641 (S.D.N.Y. July 28, 2003) (holding "failure to file a timely grievance constitutes failure to exhaust administrative remedies as required by the PLRA"). While Defendant moved both under 12(b)(6) and 12(b)(1), the Court expressly evaluated the evidence under 12(b)(1). The Plaintiff appealed the decision to the United States Court of Appeals for the Second Circuit. The Defendant moved to remand the appeal to the district court so that it may consider Defendant's motion to dismiss, pursuant to Fed. R. Civ. P. 12(b)(6), in light of the Second Circuit's August 2004 decisions addressing the exhaustion requirement of 42 U.S.C. § 1997e(a) and to consider any other issues properly raised. The Second Circuit granted Defendant's motion and remanded to the district court for further proceedings.
The instant motion was marked fully submitted on October 26, 2005.
The Allegations Against Dr. Miraflor
Cole has alleged that in or about November 1995, during his incarceration at Otisville, the medical professionals at the facility, including Dr. Miraflor, refused to provide him with adequate medical treatment for a back injury he had sustained during the late 1970's. See Complaint, pp. 2-3. In addition, he claims that the medical professionals at Otisville, specifically Dr. Miraflor, refused to provide him with a medical restriction/exemption which would have permitted him to sleep in the bottom bunk rather than the top bunk. Id. at p.3. The complaint alleges that Dr. Miraflor knew of and disregarded Cole's chronic and disabling back injury. Id. at p.5. Based on the foregoing, Cole claims that Dr. Miraflor acted with deliberate indifference to his severe medical condition. Id.
Prior to this Court's earlier opinion, Cole did not file a grievance regarding the allegations contained in his complaint and consequently, never appealed any grievances to DOCS' Central Office Review Committee ("CORC") for final resolution. See Plaintiff's August 16, 2002 correspondence to the Court annexed to Defendant's Memorandum of Law in Support as Exhibit A.
Cole filed a grievance after his prior lawsuit was dismissed. This grievance was rejected as untimely. See April 25, 2002 IGRC decision, annexed as Exhibit A to Cole's August 16, 2002 correspondence to the Court. Cole appealed the rejection of his untimely grievance to the superintendent who affirmed the decision. See Decision affirming denial of grievance, annexed as Exhibit B to Plaintiff's August 16, 2002 correspondence. DOCS found the grievance untimely on the grounds that Plaintiff failed to provide mitigating circumstances which would warrant the filing of a grievance seven years after the incident. Id. The decision not to accept the untimely grievance was also affirmed by CORC. See May 3, 2002 Memorandum to Superintendent Donnelly and May 23, 2002 correspondence to Cole from Thomas G. Eagen, Director, Inmate Grievance Program, annexed to Defendant's Memorandum of Law in Support as Exhibit B.
Standard Of Review For A 12(b)(6) Motion To Dismiss The Complaint
A motion to dismiss pursuant to Rule 12 must be denied "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." Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). For the purposes of a Rule 12 motion, all well pleaded allegations are accepted as true, and all inferences are drawn in favor of the pleader. Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993).
"The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974)). In other words, "'the office of a motion to dismiss is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of New York, 375 F.3d 168, 176 (2d Cir. 2004) (quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980)). Dismissal is only appropriate when "it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him or her to relief." Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000); accord Eternity Global Master Fund, 375 F.3d at 176-77.
The Court may consider outside documents which are integral to the complaint regardless of whether attached to the complaint, so long as the pleader has notice of them or refers to them. See Schnall v. Marine Midland Bank, 225 F.3d 263, 266 (2d Cir. 2000); Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001). Because the exhaustion issue is an integral part of a prisoner's claim, the Court may refer to documents outside of the complaint on a 12(b)(6) motion in determining ...