MEMORANDUM OPINION AND ORDER
Defendants Dr. Pirelli and Nurse Rick move to dismiss Plaintiff's claim for damages under 42 U.S.C. § 1983 and New York law. Plaintiff argues that Defendants violated his Eighth Amendment rights by being deliberately indifferent to his serious medical needs. For the reasons stated below, the Court grants defendant's motion to dismiss without prejudice.
The following summary is drawn entirely from plaintiff's complaint. Plaintiff, an inmate at Sing Sing Correctional Facility, caught his left ring finger in a metal gate, clearly breaking the bone, on February 27, 2007. (Compl. ¶ 25.) Medical personnel at Sing Sing took three x-rays of plaintiff's finger and determined that the finger was fractured and that plaintiff should be taken to Mount Vernon Hospital, a non-Correctional facility institution, to see an orthopedic surgeon. (Id.) Mount Vernon medical personnel determined that plaintiff's finger was not fractured, irrespective of the x-rays brought by plaintiff from Sing Sing. (Id.) According to plaintiff, a surgeon from Mount Vernon was in Sing Sing on February 28th, 2007, but he was not put on the list to see him. (Pl. Decl. Ex. B, at 1.) Plaintiff saw an orthopedic surgeon at Fishkill Correctional Facility on March 15, 2007, but plaintiff alleges that because defendants did not send his x-rays with him, the examination could not be completed, and the appointment had to be rescheduled. (Id. at 3.) Plaintiff claimed that his finger was becoming gangrenous, and that his stitches were not removed for 14 days. (Id.) Plaintiff had a subsequent appointment on April 5, 2007, but was told that because of the delay, it was too late to set the finger properly. (Id.)
Plaintiff filed several complaints concerning his medical care, including two letters dated March 9, 2007 and March 21, 2007 sent to the Division of Health, a letter dated March 4, 2007 sent to various prison officials, and a formal grievance made on May 16, 2007. (Compl. ¶ 22-24.) While plaintiff makes no detailed allegations concerning the letters to the Division of Health, he did include copies of the March 4, 2007, letter and his grievance with his opposition papers. (Pl. Decl. Ex. A, B.) In his March 4, 2007, letter, plaintiff details his complaint against the Mount Vernon medical staff, and the treatment he received at their facility. (Compl. ¶ 24, Pl. Decl. Ex. A, at 3.) Plaintiff also requests that the prison keep similar situations from recurring, but he does not mention any problems with the staff at Sing Sing. (Id.) The letter does not complain about any treatment plaintiff received by either Dr. Pirelli or Nurse Rick, and in fact specifically mentions that another doctor, Dr. Bashki was treating him and had ordered an appointment with the finger specialist on behalf of plaintiff. (Id.) Plaintiff does allege in the letter that a surgeon was at Sing Sing two days after his accident and that he had not been scheduled to see the surgeon. (Id.)
Plaintiff's grievance details his experience at the hospital and requests that the Department of Correctional Services properly oversee his medical care, but it does not allege any wrongdoing or neglect on behalf of Dr. Pirelli. (Pl. Decl. Ex. B, at 1.) The grievance form does claim that Nurse Rick wouldn't administer dry dressings. (Id.) Plaintiff's grievance form was returned to him on May 21, 2007, stating that "outside medical is not grievable." (Id.)
Plaintiff argues that he has suffered from protracted disfigurement of his finger as a result of a lack of timely medical care. He claims that defendants, by their deliberate indifference to his medical needs, have violated the Eighth Amendment's prohibition of cruel and unusual punishment. He claims that Dr. Pirelli, as the Facility Health Services Director, knew of his injury and did not adequately attend to his medical needs. Plaintiff further claims that Nurse Rick failed to reschedule an appointment with an orthopedic surgeon after his initial appointment was cancelled and that because of this delay, plaintiff has suffered permanent damage to his finger.
While plaintiff acknowledges that because he did not appeal the denial of his grievance he did not exhaust his administrative remedies before filing this suit, he maintains that he should be excused from the exhaustion requirement because of special circumstances surrounding his grievance. Plaintiff claims that he was told his complaint was not grievable, and that it was therefore reasonable for him to believe that the administrative grievance process was not open to him. Plaintiff also alleges violations of New York law for medical malpractice, negligence, and negligent hiring and retention.
Defendants maintain that the complaint should be dismissed because plaintiff did not exhaust his administrative remedies. Defendants also argue that should this Court find that failure to exhaust should be excused, the complaint should still be dismissed because plaintiff failed to state a claim for deliberate indifference to serious medical needs. Defendants argue that because actual knowledge of injuries is required for a deliberate indifference claim, and plaintiff never alleged that defendants had that knowledge, the complaint cannot survive a motion to dismiss. Defendants also assert that the Court lacks jurisdiction over plaintiff's state law claims because claims against employees of a corrections facility cannot be brought under New York law.
I. Exhaustion of Administrative Remedies
While exhaustion of remedies is an affirmative defense, rather than a pleading requirement, Jones, 549 U.S. at 215 ("inmates are not required to specially plead or demonstrate exhaustion in their complaints") practically speaking, the difference can be negligible, especially in situations, like this one, where the defense raises the issue. In this case, plaintiff does not refer to his grievance in his complaint. He does include it, however in his opposition papers. "On a motion to dismiss, the district court must limit itself to a consideration of the facts alleged on the face of the complaint, and to any documents attached as exhibits or incorporated by reference." Cosmas v. Hassett, 886 F.2d 8, 15 (2d Cir. 1989). However, as defendant also points out, "[e]ven where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, which renders the document integral to the complaint." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (quotations and citations omitted). The Court views the grievance filed by plaintiff as integral to the complaint.
A. Prisoner's Litigation Reform Act
The Prisoner Litigation Reform Act (PLRA), 110 Stat. 1321-71, was enacted, in part, to reduce litigation by prisoners in federal court. See Jones v. Bock, 549 U.S. 199, 202 (2007). The PLRA "requires prisoners to exhaust prison grievance procedures before filing suit." Id. at 202. "The exhaustion requirement 'allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court.' " Harrison v. Goord, 07-1806, 2009 U.S. Dist. LEXIS 48478, at *14 (S.D.N.Y. June 9, 2009), citing Jones, 549 U.S. at 204. "The Supreme Court has held that 'the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they allege excessive force or some other wrong.' " Macias v. Zenk, 495 F.3d 37, 40 (2d Cir. 2007), quoting Porter v. Nussle, 534 U.S. 516, 532 (2002). "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Woodford v. Ngo, 548 U.S. 81, 91 (2006). Even if a grievance is rejected as untimely, a prisoner has not necessarily exhausted his administrative remedies. See Macias, 495 F.3d at 41, citing Woodford, 548 U.S. at 95 (rejecting argument that denial of grievance as untimely implies exhaustion, explaining that compliance with procedural rules is critical because "[a] prisoner who does not want to participate in the prison grievance system will have little incentive to comply with the system's procedural rules unless noncompliance carries a sanction").
In order to exhaust administrative procedures in New York, an inmate must go through the inmate grievance program. The Department of Corrections has a three-step procedure, the first step of which requires the inmate to file a complaint with the Inmate Grievance Resolution Committee within 21 ...