The opinion of the court was delivered by: John T. Curtin United States District Judge
Plaintiff is an inmate incarcerated by the New York State Department of Corrections ("DOCS"), and was housed at the Elmira Correctional Facility ("ECF") from December 2, 1997 to August 28, 2001. He brought this action pro se on March 16, 2000 with the filing of several documents, including a motion for preliminary injunction, motion to consolidate, and a request for production of documents. Items 1 - 6. In his Second Amended Complaint filed on September 14, 2000 (Item 13), plaintiff asserted claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, et seq., and 42 U.S.C. §§ 1983, 1985, and 1986.
Specifically, plaintiff, who requires dialysis and has limited mobility due to his use of a wheelchair, claims that he was denied access to programs and proper medical care, and was harassed and assaulted by staff on the basis of his race and disability.
Defendants have moved for summary judgment dismissing the Complaint in its entirety. Item 67. For the reasons that follow, the court grants defendants' motion and dismisses the action.
Plaintiff originally filed this action pro se in March 2000. Item 1. In an order dated April 11, 2000 (Item 7), the Hon William M. Skretny ordered plaintiff to file an Amended Complaint, which he did on April 18, 2000. Item 8. This court subsequently appointed counsel to represent plaintiff. Item 10. A Second Amended Complaint was filed on September 14, 2000. Item 13. The Complaint named as defendants DOCS, ECF, and DOCS employees assigned to ECF, including Floyd Bennett, Dana Smith, J. Houghtling, M. Perfetti, R. Baker, L. Eck, K. Howarth, D.C. Augustine, and R. Pacheco. Item 13, ¶¶ 7-14. Defendants ECF, Bennett, Smith, Houghtling, Perfetti, Baker, Howarth, Augustine, and Pacheco appeared by answering the Complaint on May 18, 2001. Item 36. Defendant DOCS answered on November 6, 2001. Item 64. Defendant Eck has not been served, nor has he appeared.
The parties engaged in some document discovery. On January 18, 2002, the court issued a scheduling order directing defendants to file a motion to dismiss and/or for summary judgment before March 17, 2002. Defendants' motion for summary judgment was filed on March 18, 2002. Plaintiff originally filed an affidavit in opposition on April 19, 2002. Item 71. Plaintiff's counsel then requested an extension until May 21, 2002 to file a Memorandum of Law, which the court granted. Item 73. Plaintiff's Statement of Undisputed Facts, Item 74, and Memorandum of Law, Item 75, were filed on May 31, 2002.
Oral argument was heard on July 25, 2002. At that time, plaintiff's counsel advised the court that he intended to submit documents regarding plaintiff's exhaustion of administrative remedies. That information was filed on August 19, 2002. Item 78. The defendants filed a responsive declaration on October 21, 2002. Item 80. The court reserved decision pending the resolution of several cases involving exhaustion of inmate claims under the Prisoner Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e. Those cases have now been decided.*fn1
At all times relevant to the allegations in the complaint, plaintiff was housed at the ECF. Item 70, ¶ 5. He states that he developed renal disease in 1997 and has been dependent upon hemodialysis therapy for survival. Item 71, ¶ 1. He also states he is paralyzed from his waist down and, since 1988, has been "wholly dependent upon a wheelchair for any safe mobility." Id. In his 96-paragraph, 31-page complaint, plaintiff asserts a number of claims, including: when confined to the prison infirmary, he is "deprived of significant institutional benefits solely because of sickness and serious disability;" the "prison administration . . . treat[s] infirmary patients in a significantly different way, discriminates against such persons in violation of the Americans With Disabilities Act;" prison policy regarding diet for dialysis patients is a violation of the ADA and constitutes deprivation of proper treatment. Item 13, ¶ 5. In addition, plaintiff alleges he has been "subjected to numerous beatings, assaults and batteries at the hands of correction facility personnel accompanied by derogatory racial references"; he has brought these matters to the attention of ECF administrative personnel and they are "deliberately indifferent to the illegal treatment of plaintiff." Id. He also claims that he has suffered discrimination based on disability pertaining to the ECF Mess Hall eating policy under which he is not allowed to sit and eat with able-bodied inmates, Item 13, ¶¶ 66-69, and has suffered retaliation for detailing the violations contained in his complaint. Id., ¶¶ 62, 78. Plaintiff also claims that he is the victim of risky and unhygienic dialysis procedures, including the reuse of plastic clamps on numerous patients and the assignment of medical tasks to non-medical personnel. Id., ¶¶ 56-60, 70-73. Finally, plaintiff alleges that he has been denied physical therapy and peritoneal dialysis. Id., ¶¶ 76-78. Plaintiff has asserted claims under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the Constitution, the ADA and Section 504 of the Rehabilitation Act, and the Civil Rights Act of 1987.
The record reveals that while at ECF, plaintiff filed eight formal grievances. Item 70, ¶ 12:*fn2
(1) Grievance EL-18-519-98 was filed on June 3, 1998. Plaintiff claimed he was denied the opportunity to participate in prison programming and activities due to being confined to a wheelchair. Item 70, ¶ 13. He complained that many areas of the prison were not wheelchair-accessible and demanded a hearing to determine whether he was entitled to a reasonable accommodation under the ADA. Item 69, Ex. B. This grievance contains many of the issues that plaintiff raised in his Second Amended Complaint pursuant to the ADA and Section 504. This grievance was not appealed to the Central Office Review Committee ("CORC"), as plaintiff prevailed upon the Superintendent's review. In response to the grievance, plaintiff was advised that the Deputy Superintendent for Program Services "will make available the necessary placement steps to meet the grievant's needs." Id.
(2) Grievance EL-18995-98 was filed on September 14, 1998. Plaintiff requested a renal diet. Item 70, ¶ 14; Item 69, Ex. C. This grievance was granted, and an investigation revealed that plaintiff was receiving a renal diet. Nonetheless, plaintiff appealed to the CORC, complaining that his diet did not meet the specifications of a renal diet. Item 69, Exh. C. Following the appeal, a further investigation concluded that plaintiff was receiving a renal diet. Id.
(3) Grievance EL-20072-99 was filed on May 9, 1999. Plaintiff claimed he was subjected to racial remarks by ECF personnel and was served false misbehavior reports. Item 70, ¶ 15; Item 69, Ex. D. This grievance was denied for insufficient evidence and plaintiff did not appeal to the CORC.
(4) Grievance EL-20315-99 was filed on June 21, 1999. Plaintiff alleged he was ordered to walk through a metal detector, despite the fact that he was paralyzed, and was assaulted. Item 70, ¶ 16; Item 69, Ex. E. The Superintendent found no evidence to sustain the ...