The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff, William Crenshaw, appearing pro se, commenced this action pursuant to 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), alleges that the defendants, who at all relevant times were physicians employed by DOCS, have violated his rights under the Eighth Amendment to the United States Constitution, by failing to provide plaintiff with adequate medical care.
One of the three defendants, Dr. Levitt, has moved for summary judgment.*fn1 The other two defendants, Dr. Syed and Dr. Gusman, have moved for an order transferring this action to the Northern District of New York. For the reasons that follow, both motions are granted. Plaintiff has also filed several motions, all of which are denied.
I. Plaintiff's Failure to Respond to the Summary Judgment Motion
Although plaintiff has filed various documents since defendants filed their summary judgment motion, see Dkt. #25, #28, #31, #33, #34, #35, he has not submitted an actual response to the motion; none of his submissions address the substance or merits of defendants' motion.
Rule 56(e) of the Federal Rules of Civil Procedure provides that
[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denial of the adverse party's pleading, but the adverse party's response by affidavits or as otherwise provided in this rule must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
The Court of Appeals for the Second Circuit has held that when a party moves for summary judgment against a pro se litigant, either the movant or the district court must provide the pro se litigant with notice of the consequences of failing to respond to the motion. Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620 (2d Cir. 1999); see also Irby v. New York City Transit Auth., 262 F.3d 412, 413 (2d Cir. 2001).
In the instant case, defendants' notice of motion (Dkt. #17) and the Court's scheduling order (Dkt. #21) both gave plaintiff notice of the requirements of Rule 56 and the consequences of failing to respond properly to a motion for summary judgment. There is no question that plaintiff has been adequately advised of the pendency of the motion, of the need for him to respond and the form in which he should do so, and of the consequences of not responding to defendants' arguments and factual allegations. Since plaintiff has not done so, the Court may accept the truth of defendants' factual allegations, and determine whether defendants are entitled to summary judgment. See Pettus v. McGinnis, 533 F.Supp.2d 337, 338-39 (W.D.N.Y. 2008).
Defendant Levitt moves for summary judgment based on plaintiff's failure to exhaust his administrative remedies with respect to his claims against Levitt, as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). The PLRA provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." Id.
To satisfy that requirement, prisoners in New York must ordinarily follow a three-step DOCS grievance process. The first step in that process is the filing of a grievance with the Inmate Grievance Resolution Committee. Next, the inmate may appeal an adverse decision to the prison superintendent. Finally, the inmate may appeal the superintendent's decision to the Central Office Review Committee ("CORC"). Brownell v. Krom, 446 F.3d 305, 309 (2d Cir. 2006). In general, it is only upon completion of all three levels of review that a prisoner may seek relief in federal court under § 1983. Neal v. Goord, 267 F.3d 116, 121 (2d Cir. 2001), overruled on other grounds by Porter v. Nussle, 534 U.S. 516 (2002); Campos v. Correction Officer Smith, 418 F.Supp.2d 277, 278 (W.D.N.Y. 2006).
In support of his motion, Levitt has filed a declaration by Donna Northrup, who currently is the Inmate Grievance Program Supervisor at Wende Correctional Facility, where the events giving rise to plaintiff's claims against Dr. Levitt occurred. Northrup states that her review of the pertinent records indicates that plaintiff did not file any grievances, or appeals to CORC, during his confinement at Wende, which lasted from April 2006 to September 2007. Dkt. #18. Defendants' Statement of ...