The opinion of the court was delivered by: P. Kevin Castel, U.S.D.J.
Plaintiff, proceeding pro se, alleges that she was deprived of medical treatment while detained by the Westchester County Department of Corrections ("WCDOC"), and that the deprivation amounted to a denial of her constitutional rights by persons operating under color of state law. Chief Judge Wood granted in forma pauperis status but directed the plaintiff to submit an amended complaint within sixty days. (Order of October 17, 2006 (the "Order").) The Order pointed out the inadequacy of the allegations against the municipal defendants, i.e., that no Monell-type claim was adequately alleged, and that personal involvement of supervisors, a necessary condition for liability under section 1983, was not adequately alleged. (Order at 2-3.) The Order spelled out the facts plaintiff would need to allege to state any such claim for deliberate indifference to medical needs. (Id. at 3-5.)
On December 18, 2006, plaintiff filed an amended complaint against WCDOC, Anthony Amicucci, "Warden" of WCDOC, John O'Neill, Assistant Warden, and various John and Jane Doe defendants. Also named as defendants are the Mental Health Department of Westchester County Department of Corrections and the Medical Department Westchester County Department of Corrections. Defendants have moved to dismiss asserting, among other things, that plaintiff failed to exhaust her available administrative remedies, and has failed to otherwise state a claim against any named defendant.
The amended complaint is set forth on the complaint form for section 1983 cases utilized by the Pro Se Office in this District. The form recites the exhaustion of administrative remedies requirement under the Prison Litigation Reform Act of 1995 (the "PLRA"). 42 U.S.C. § 1997e et seq.
Plaintiff acknowledges that her claim arose while she was confined in the WCDOC facility and that the facility has a grievance procedure. (Amended Complaint IV.A. & B.) She further acknowledges that she did not file a grievance, but denies knowing whether the grievance procedure covers some or all of her claims. (Id. IV.C., D. & E.)
The PLRA was enacted in an effort to address the large number of prisoner complaints filed in federal court. SeePorter v. Nussle, 534 U.S. 516, 524 (2002) (The PLRA is intended to "reduce the quantity and improve the quality of prisoner suits.") The PLRA does not itself create any substantive rights but "claims covered by the PLRA are typically brought under 42 U.S.C. § 1983 . . . ." Jones v. Bock,___ U.S.___, 127 S.Ct. 910, 919 (2007). Under the provisions of the PLRA, "[n]o action shall be brought with respect to prison conditions under [section 1983], or any other Federal law, by a prisoner confined in any . . . correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e (a). The exhaustion requirement is intended to afford "corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case." Porter, 534 U.S. at 524-25. The Supreme Court has made clear that "the PLRA's exhaustion requirement applies to all inmate suits about prison life . . . ." Id. at 532. Within the Second Circuit, failure to exhaust administrative remedies is an affirmative defense and the defendant therefore bears the burden of proving that claims have not been exhausted. SeeJenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir. 1999). Where a complaint contains claims which are exhausted and claims which have not been properly exhausted, the Court must dismiss only the unexhausted claims and not the complaint in its entirety. Bock, 127 S.Ct. at 924.
In Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004), the Second Circuit summarized its holdings in a series of cases as requiring that a three-part inquiry be undertaken when a prisoner counters a defendant's argument that he or she failed to exhaust. First, the court considers whether administrative remedies were "available" to the prisoner. Id. (citing Abney v. McGinnis, 380 F.3d 663 (2d Cir. 2004)). Second, the court inquires whether the defendants failed to preserve a non-exhaustion argument by failing to raise the issue or preserve it. Hemphill, 380 F.3d at 868 (citing Johnson v. Testman, 380 F.3d 691 (2d Cir. 2004)). Third, the court looks to whether the defendant's own actions inhibited the inmate's exhaustion of remedies, and if so, whether the actions estopped one or more defendant from raising non-exhaustion. Hemphill, 380 F.3d at 868 (citing Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004)). If, after considering these three questions, the court finds that administrative remedies were available to the plaintiff, and that defendants are not estopped and have not forfeited their non-exhaustion claims, but that the plaintiff still failed to exhaust, the court considers whether plaintiff plausibly alleges "special circumstances" that justify the prisoner's failure to comply with the exhaustion requirements. Id.
Here, on this motion to dismiss, the defendants have not cited to the relevant grievance procedures or shown that they were available to plaintiff. WCDOC operates county, not state, facilities, and it is not self-evident that the grievance mechanisms available to prisoners in state facilities were available to this plaintiff. N.Y. Correction Law § 139; 7 N.Y. Code R. & Reg. ("NYCRR") § 701.5. Nor is it appropriate to decide the third prong of the exhaustion analysis or engage in the "special circumstance" inquiry in this particular case on a motion to dismiss. The motion to dismiss on exhaustion grounds is denied.
Plaintiff alleges that when she came to WCDOC in May 2005, she was experiencing stomach pain. She was having difficulty swallowing and digesting and experienced pain and vomiting. (Amended Complaint II.) She alleges that the "officer on duty" was "supposed to be a liaison" with the medical staff but "knowingly and deliberately kept me from obtaining medical treatment despite the fact that I constantly complained of the same symp[toms]." Id. She also alleges that various John and Jane Doe officers were told of her pain and "refused to acknowledge and exercise their authority in being able to contact and alert medical staff as to my condition." Id.
There are no allegations specific to Anthony Amicucci, "Warden" of WCDOC or John O'Neil, "Assistant ...