MEMORANDUM OPINION AND ORDER
Plaintiff Miguel Baez brings this action pro se under 42 U.S.C. § 1983 alleging that defendant Dr. Yaff Kahanowicz was deliberately indifferent in providing him medical care and violated his Eighth Amendment rights. Defendant now moves to dismiss the amended complaint on the grounds that it names the wrong defendant, that plaintiff failed to exhaust administrative remedies, and that service was improper. Because the Court finds that the named defendant had no involvement with plaintiff, and that plaintiff's failure to exhaust administrative remedies would bar his claims in any event, the Court is compelled to dismiss this action.
For purposes of this motion, the factual allegations contained in plaintiff's amended complaint are taken to be true. On February 13, 2003,*fn1 while incarcerated at the Metropolitan Correctional Center,*fn2 plaintiff fell off the top bunk of a bed and injured his right arm and wrist. (Am. Compl. ¶¶ 17--20.) After being examined and x-rayed, plaintiff was taken to a hospital, but a cast could not be applied because of severe swelling. (Id. ¶¶ 24--33.) Several days later, plaintiff was taken to an orthopedic doctor, who relied on the prior x-rays in placing his wrist in a cast. (Id. ¶¶ 41--44.) Plaintiff alleges that a new x-ray would have shown that his bones were healing improperly and needed to be reset, and would have avoided the intense pain he suffered for the duration of his recovery. (Id. ¶¶ 46--50.) When the cast was eventually removed in early April, plaintiff's hand was deformed and swollen and in pain. (Id. ¶¶ 51--52.) Plaintiff alleges that over the next month, he wrote "cop-outs," or informal complaints, to medical staff and the warden without any response. (Id. ¶ 55.) Eventually, he wrote a cop-out to assistant warden R. Powers, who took him to the medical clinic, where a doctor called his treating orthopedist and requested that the orthopedist come to see him. (Id. ¶¶ 54--58.) The orthopedist came to see plaintiff a week later and explained that it was necessary to perform surgery to correct the problem, but surgery was never performed. (Id. ¶¶ 59--61.) On June 5, 2003, plaintiff filed a BP-8*fn3 with a "counselor" concerning his wrist, but received no response. (Id. ¶¶ 62--64.)
Sometime thereafter, plaintiff filed the initial complaint in this action and requested to proceed in forma pauperis.*fn4 On June 25, 2003, Chief Judge Mukasey granted this request and directed the Clerk of Court to assign a docket number to plaintiff's request. (Order of June 25, 2003 ("Order") at 1.) In addition, Chief Judge Mukasey directed plaintiff to amend his complaint to give a detailed account of any inadequate medical care and to properly allege state action and exhaustion of administrative remedies. (Id. at 1--5.) The Order incorrectly stated that plaintiff must show he exhausted the New York City Department of Corrections inmate grievance procedures and then described those procedures, despite the fact that plaintiff was being held in a federal facility with a different grievance program. On July 29, 2003, before filing the amended complaint and after being told that the "counselor" with whom he filed his BP-8 had failed to bring plaintiff the response, plaintiff filed a BP-9, or formal administrative remedy request with the "unit manager." (Am. Compl. ¶¶ 65--66.)
On August 5, 2003, plaintiff filed the amended complaint as directed by Chief Judge Mukasey. Because he was proceeding in forma pauperis, plaintiff was entitled to use the U.S. Marshall Service to effect process. On October 6, 2003, a summons was issued and the docket reflects that service was effected by the U.S. Marshals on November 20, 2003, 107 days later. However, the actual process receipt is ambiguous as to whether proper service was effected and the Court issued an order pointing out this ambiguity on January 27, 2004, ordering the plaintiff to write to the pro se office and update the Court. Not until February 24, 2006, after additional orders from the Magistrate Judge to which the case had been referred, was proper service clearly effected. Defendant filed this motion to dismiss in lieu of filing an answer. Plaintiff filed no opposing papers.
A motion to dismiss submitted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure 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." Leibowitz v. Cornell Univ., 445 F.3d 586, 590 (2d Cir. 2006) (quoting Conley v. Gibson, 355 U.S. 41, 45--46 (1957)). In evaluating a motion to dismiss under Rule 12(b)(6), the Court "must accept as true the factual allegations in the complaint, and draw all reasonable inferences in favor of the plaintiff." Bolt Elec., Inc. v. City of New York,53 F.3d 465, 469 (2d Cir. 1995) (citations omitted). "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 (1974)). The Court is normally confined to the complaint and "any documents that are either incorporated into the complaint by reference or attached to the complaint as exhibits." Blue Tree Hotels Inv. (Can.), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004) (citing Taylor v. Vt. Dep't of Educ., 313 F.3d 768, 776 (2d Cir. 2002)).
If a party submits additional evidence to the Court beyond these limits, "a district court must either 'exclude the additional material and decide the motion on the complaint alone' or 'convert the motion to one for summary judgment under Fed. R. Civ. P. 56 and afford all parties the opportunity to present supporting material.'" Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir. 2000) (quoting Fonte v. Bd. of Managers of Cont'l Towers Condo., 848 F.2d 24, 25 (2d Cir. 1988)); see also Fed. R. Civ. P. 12(b);*fn5 5C Wright & Miller, Federal Practice and Procedure § 1366. The motion presently pending before the Court seeks dismissal of the Complaint based, inter alia, on the identity of the defendant. Resolution of this issue requires the Court to consider an affidavit submitted by defendant that is not mentioned in the amended complaint or any of the pleadings. Recognizing this, defendant explicitly requests the Court to treat her motion as one for summary judgment in its Notice of Motion to Dismiss. Together with her motion, defendant served upon plaintiff a Notice to Pro Se Litigant Opposing Motion for Summary Judgment, as required by Local Civil Rules 12.1 and 56.2. This notice explains to plaintiff that he may not rest on his pleadings in opposing a motion for summary judgment.
While the Second Circuit has frequently "held that a district court ordinarily must give notice to the parties before converting a motion to dismiss pursuant to Rule 12(b)(6) into one for summary judgment and considering matters outside the pleading," Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir. 1999) (citations omitted), "[t]he essential inquiry . . . is whether the non-movant should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings.'" Krijn v. Pogue Simone Real Estate Co., 896 F.2d 687, 689 (2d Cir. 1990) (citations and internal quotation marks omitted). Here, defendant explicitly requested in her moving papers that the Court convert the motion and attached a notice to plaintiff as a pro se litigant of the consequences. Plaintiff can not reasonably be taken by surprise by a conversion of the instant motion to dismiss to one for summary judgment. See National Assoc. of Pharmaceutical Mfrs., Inc. v. Ayerst Laboratories, Div. of/and American Home Products Corp., 850 F.2d 904, 911 (2d Cir. 1988) (holding non-movant on notice where motion was captioned "motion to dismiss or, in the alternative, for summary judgment.") Plaintiff had the opportunity to submit papers demonstrating both that defendant was the correct party, and that he had exhausted administrative remedies, but he failed to do so, or indeed, to file any opposition. The Court will therefore treat defendant's motion as one for summary judgment.
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "On a motion for summary judgment, the moving party has the burden of showing the absence of a genuine issue of material fact, and the district court's task is limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998). In deciding such a motion, this Court "must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor." Id.
Defendant first asserts that she has never met or spoken to the plaintiff, nor treated any patients in any jail or prison, so she could not possibly be the proper party. (Physician Aff. ¶¶ 2, 4.) Furthermore, she is a board certified opthamologists, a branch of medicine relating to the treatment of diseases of the eye, and has never practiced orthopedic medicine. (Id. ¶ 3.) It appears from an interrogatory filed by plaintiff (Affirmation in Partial Opp'n to Pl.'s Motion to Lift Stay, Ex. C) and a letter in support of lifting the extant stay on discovery (Pl.'s Letter, Nov. 7, 2006) that he has conceded this point. This is an adequate showing to demonstrate that no genuine issue exists as to whether defendant is the actual party intended to be sued. Therefore, the Court grants defendant's motion for summary judgment.
Plaintiff appears to believe that the proper defendant is the husband of the named defendant, and that he works in the same office as his wife. He requests that the Court lift the discovery stay and require defendant to answer a two-page interrogatory that may clarify whether defendant's husband is the proper party. (Pltf. Affirmation, Nov. 3, 2006.)
Defendant opposes this request, arguing that it is improper to require an "innocent" individual to answer a discovery request. (Affirmation in Partial Opp'n to Pl's Mot. to Lift Stay, Oct. 24, 2006, at ¶ 12.) Because of the possibility that the named defendant and the proper defendant may be married, and the fact that the interrogatory consists of eight short questions that would take little time to complete, the Court is inclined to grant plaintiff's request and allow him to amend his complaint should the answers prove fruitful. See Fed. R. Civ. P. 15(a) ("[L]eave [to amend] shall be freely given when the justice so requires."); Satchell v. Dilworth, 745 F.2d 781, 785 (2d Cir. 1984) (pro se litigant "should be afforded every reasonable opportunity to demonstrate that he has a valid claim"). However, the Court should not grant plaintiff leave to amend (and direct defendant to answer the interrogatory) if the amendment would be futile because the newly amended complaint would be subject to dismissal. See Lucente v. IBM Corp., 310 ...