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George v. Intake Officers at Downstate Working Jan 5

March 20, 2009

ANTHONY GEORGE, PLAINTIFF,
v.
INTAKE OFFICERS AT DOWNSTATE WORKING JAN 5, 2005; OFFICER E. SCOTT; AND OFFICER B. ANDERSON, DEFENDANTS.



The opinion of the court was delivered by: Laura Taylor Swain United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Anthony George ("George" or "Plaintiff") brings this Section 1983 action pro se against Intake Officers at Downstate Correctional Facility ("Intake Officers"), Officer E. Scott ("Scott"), and Officer B. Anderson ("Anderson") (collectively "Defendants"), alleging that Defendants were deliberately indifferent to his medical needs in violation of the Eighth Amendment. The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331.

Defendants moved pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss Plaintiff's Amended Complaint ("Am. Compl.") on the grounds that Plaintiff had failed to exhaust his administrative remedies. By Order dated October 8, 2008, the Court converted Defendants' motion to dismiss to a motion for summary judgment and provided the parties with an opportunity to supplement their submissions. For the reasons explained below, the Court grants summary judgment in Defendants' favor.

BACKGROUND

Plaintiff's Allegations

The following facts are taken from Plaintiff's Amended Complaint, unless otherwise noted. Plaintiff, a former inmate at Downstate Correctional Facility ("Downstate") and Cayuga Correctional Facility ("Cayuga"), identified an injury to his ankle during the intake procedures at Downstate. (Am. Compl. p. 3.) After noticing a deformity in Plaintiff's right ankle, the intake nurse issued Plaintiff a permit to wear specialized medical boots. (Id.) Plaintiff alleges that, at some point thereafter while he was still at Downstate,Officer Anderson tore up the permit and Officer Scott placed the medical boots in the garbage. (Id.) Plaintiff alleges that, as a result of being forced to walk without the boots, he fell down a flight of stairs and suffered a head injury. (Am. Compl. p. 3.) After Plaintiff was transferred to Cayuga, he suffered two more falls while walking to the mess hall without medical boots, resulting in further injuries to his back, neck, head, and ankle. (Id.) Plaintiff further alleges that he was forced to walk through the snow in an aircast because he did not have the boots. (Id.) According to Plaintiff, he was sent to an outside hospital and to sick call for the pain and eventually an MRI revealed torn tendons in his feet requiring surgery. (Id.) Plaintiff was without the medical boots for three months. (Am. Compl. p. 4.)

Plaintiff acknowledges in the Amended Complaint that both facilities had grievance procedures that covered the subject matter of his claims. Plaintiff indicates that he filed grievances at both Downstate and Cayuga complaining that his medically approved boots were taken from him. (Id.) Plaintiff reports that, identifies as a consequence of filing his grievance(s), he received medical boots after three months. (Id.) Plaintiff does not identify any steps that he took to appeal any decision that he received with respect to those grievances. (Id.)

Procedural History

Plaintiff's original complaint was dismissed, with leave to file an amended complaint, for, inter alia, failure to sufficiently allege facts regarding his medical needs. (See docket entry no. 3.) Plaintiff filed an Amended Complaint and Defendants filed a motion to dismiss. (Docket entry nos. 4; 14.) Plaintiff filed a motion for an extension of time to respond to Defendants' motion to dismiss, and submitted a notice of his recent change of address. (See docket entry nos. 21; 18; 19.) Plaintiff's motion for an extension of time was granted and copies of the Order were sent to both Plaintiff's old and new addresses. (See docket entry no. 20.) Plaintiff failed to file opposition to Defendants' motion to dismiss by the extended deadline.

Conversion to Summary Judgment

Defendants' motion to dismiss the Amended Complaint on the grounds of failure to exhaust administrative remedies was accompanied by an affidavit (the "Bellamy Affidavit") asserting that Plaintiff only filed a grievance concerning these matters at Cayuga and that he did not appeal the result of that grievance, as well as a copy of the grievance and the responses to it. Because Defendants' motion was based on evidence that was not part of the complaint, Court converted the motion to one for summary judgment, issuing an order on October 8, 2008, that included a Notice to Pro Se Litigant concerning the potential consequences of failing to proffer evidence in response to such a motion and giving both sides additional time to make supplementary submissions. McCoy v. Goord, 255 F. Supp. 2d 233, 251 (S.D.N.Y. 2003) ("If nonexhaustion is not clear from the face of the complaint, a defendant's motion to dismiss should be converted, pursuant to Rule 12(b), to one for summary judgment."); see also Villante v. Dep't of Corr. of City of New York, 786 F.2d 516, 521 (2d Cir. 1986) ("[I]f a district court considers matters outside of the pleadings, it must then convert a motion under Rule 12(b)(6) to one for summary judgment and ensure that the opposing party is given proper notice of the conversion.") Plaintiff responded with two letters -- one detailing his claims concerning his injuries and providing medical documentation of his injuries and treatments, and one in which he asserted that he had filed a grievance at Downstate, had a hearing at Cayuga, and received the medical boots several weeks later. (See Docket Entry No. 24, Pl's October 19, 2008, letter). Plaintiff provided no grievance documentation. Defendants made no further submissions.

DISCUSSION

Summary Judgment Standard

Summary judgment is proper if the "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 judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the burden of establishing that no genuine issue of material fact exists. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 256 (1986). When the non-moving party is proceeding pro se, the court should read plaintiff's submissions "liberally and interpret them to raise the strongest argument that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (internal citations and quotations omitted). This is particularly true when evaluating motions for summary ...


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