The opinion of the court was delivered by: Honorable Jed S. Rakoff, U.S.D.J.
REPORT AND RECOMMENDATION
James Paul, a prison inmate, brings this action pro se pursuant to 42 U.S.C. § 1983 against Warden Bailey, Dr. Goldberg, John or Jane Doe, M.B. (Deputy Warden O.B.C.C.) ("M.B."),*fn1 and William Thomas.*fn2 The plaintiff claims that while he was detained at the George Motcham Detention Center ("GMDC"), the Otis Bantum Correctional Center ("OBCC"), and the Robert N. Devoren Complex ("RNDC") on Rikers Island, the defendants failed to provide him with medically-required shoes despite the fact that prison-issued footwear caused him lacerations, open wounds, and scarring on his feet. Mr. Paul alleges that the defendants' behavior demonstrates deliberate indifference to his medical condition, constituting cruel and unusual punishment in violation of the Eighth Amendment.*fn3 Warden Bailey, Dr. Goldberg, and Mr. Thomas (the "Moving Defendants") have moved to dismiss the Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, I recommend that the plaintiff's claims against Dr. Goldberg and Mr. Thomas be dismissed with prejudice. Additionally, I recommend that the claims against Warden Bailey be dismissed without prejudice and that Mr. Paul be granted leave to amend in order to assert facts that would support a claim against this defendant.
On December 2, 2008, the Department of Correction of the City of New York ("DOC") instituted a policy prohibiting inmates from wearing their own personal footwear and requiring them to wear DOC-issued shoes, which the plaintiff refers to as "Patterson[s]." (Am. Compl., ¶¶ II(C), (D); Complaint ("Compl."), ¶ II(D); Grievant's Statement Form dated Dec. 11, 2008 ("Grievance-1"), attached to Compl.). On December 8, 2008, Mr. Paul, who was housed at GMDC, reported to "sick-call due to layers of skin rubbing off from the tongs [sic] and heels of [his] feet," a problem that he contends was caused by the prison-issued shoes. (Grievance-1). The plaintiff claims that the lacerations he sustained had to be treated and re-bandaged daily by prison nurses. (Am. Compl., ¶ III; Return to Clinic Appointment Card, attached to Compl.; Grievance-1). He further alleges that these injuries required him to wash his sheets each morning to remove blood and pus stains. (Grievance-1).
On December 11, 2008, Mr. Paul filed his first grievance, detailing his complaints regarding the footwear policy. (Grievance-1). The plaintiff alleges that his grievance was not taken seriously and was subsequently "discarded" by the Inmate Grievance Resolution Committee (the "IGRC").*fn5 (Am. Compl., ¶ II(D)). After filing this grievance, Mr. Paul alleges that he spoke personally with Warden Bailey of GMDC at a weekly meeting, where the warden stated that "[anyone] with medical conditions [would] be given back [their shoes] or suitable ones." (Am. Compl., ¶ III(G)).
On December 18, 2008, the plaintiff was transferred from GMDC to OBCC (undated letter of James Paul ("Paul Letter"), attached to Compl., at 1). Mr. Paul claims that the grievance he previously filed did not follow him. (Am. Compl., ¶ II(D); Paul Letter at 1). On December 24, 2008, Dr. Goldberg, a podiatrist,*fn6 diagnosed the plaintiff with flat feet, prescribed "suitable footwear," and ordered Mr. Paul to come back in a week for a follow-up appointment. (Paul Letter at 1). Mr. Paul returned to the doctor as instructed on December 31, 2008, but was treated by John or Jane Doe, M.D.,*fn7 in Dr. Goldberg's absence. (Paul Letter at 2). At this appointment, the plaintiff was informed that pursuant to a policy that went into effect after his initial visit, he was now required to consult a dermatologist before receiving new footwear. (Paul Letter at 2). Mr. Paul claims that Dr. Goldberg's absence demonstrates "neglect," because it contributed to the delay in his receiving the prescribed footwear. (Am. Compl., ¶ V).
The plaintiff alleges that on a later date, he resubmitted to administrators at OBCC the grievance he initially filed at GMDC. (Grievant's Statement Form ("Grievance-2"), attached to Compl.). Thereafter, on January 3, 2009, he submitted an interview request to DOC regarding his previous two grievance filings. (DOC Interview Request Form, attached to Compl.). On January 5, 2009, Mr. Paul was informed by the Disability Rights Coordinator for Inmates that his request for supportive footwear was not granted because an interim policy change required that he submit his footwear request directly to medical staff. (DOC Accommodation Determination Acknowledgment for Inmates, attached to Compl.).
On January 14, 2009, Dr. James Taft, a dermatologist, examined the plaintiff and recommended that he "wear normal shoes or sandals that do not cause friction to dorsal feet." (Consultation Request ("Consult"), attached to Compl.). At an unspecified date after Dr. Taft made his recommendation, the plaintiff was issued authorization to wear supportive footwear. (Medical Modification Card ("Med. Card"), attached to Am. Compl.; Am. Compl., ¶ II(D)). This authorization was in the form of a card signed by M.B.,*fn8 a Deputy Warden of OBCC. (Med. Card.; Am. Compl., ¶¶ I(A), IV(G)). The plaintiff claims that despite the authorization, no new shoes were provided. (Am. Compl., ¶¶ II(D) and IV(G)).
On January 15, 2009, the plaintiff submitted another grievance to the IGRC, stating that although both the GMDC and OBCC facilities were aware of his medical problems, neither had provided him with suitable footwear as prescribed by his podiatrists and dermatologist. (Grievant's Statement Form dated Jan. 15, 2009 ("Grievance-3"), attached to Compl.). On Jan. 21, 2009, Mr. Paul filed his fourth grievance, again asking that he be provided with his medically-required shoes. (Inmate Grievance Form dated Jan. 21, 2009 ("Grievance-4"), attached to Am. Compl.). The IGRC responded on January 28, 2009, informing the that he would be provided with the footwear as recommended by his doctors. (Grievance-4).
On February 3, 2009, the plaintiff learned that he was being transferred to RNDC. (Grievance Form dated Feb, 3, 2009 ("Grievance-5"), attached to Am. Compl.; Am. Compl., ¶ II(D)). Not yet in receipt of the medically-required shoes, Mr. Paul filed a fifth grievance, requesting new footwear before his transfer. (Grievance-5). Nonetheless, the plaintiff was moved to RNDC without being provided with the shoes. (Inmate Grievance Resolution Program RNDC dated Feb. 2, 2009 ("Grievance-6"), attached to Am. Compl.). As a result, he filed a sixth grievance on February 5, 2009, urging that DOC "honor the doctor[s'] order and give [him his] footwear please." (Grievance-6). According to the plaintiff, the medical personnel at RNDC also failed to supply him with new shoes and blamed the facilities at Rikers Island where he had previously been housed for not providing him with appropriate footwear. (Am. Compl., ¶ II(D)). Thereafter, Mr. Paul was transferred out of Rikers Island to the Downstate Correctional Facility, a state institution. (Am. Compl., ¶ II(D)).
On June 24, 2009, the plaintiff's Complaint was filed in this Court.*fn9 On that same date, Chief Judge Preska directed Mr. Paul to submit an amended complaint in order to correct several deficiencies in his pleading. (Order at 1, 5-6). Specifically, Mr. Paul was told to (1) provide the names and titles of all relevant persons; (2) describe all relevant events, stating the facts that support his case including what each defendant did or failed to do; (3) provide the dates and times of each relevant event; (4) provide the location where each relevant event occurred; (5) describe how each defendant's acts or omissions violated his rights as well as the injuries he suffered; and (6) state what relief he seeks. (Order at 5).
On August 5, 2009, the plaintiff filed the Amended Complaint. The Moving Defendants now move to dismiss that pleading, arguing that Mr. Paul has failed to state ...