The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge
Plaintiff, John Bryant, proceeding pro se, brings this suit under 42 U.S.C. § 1983 alleging that three doctors employed by the Department of Correctional Services ("DOCS"), including two doctors at the Sing Sing Correctional Facility, were deliberately indifferent to his medical needs. The defendants have moved to dismiss on several grounds, including exhaustion. For the following reasons, the defendants' motion should be denied as to exhaustion but granted on the merits, with Bryant given leave to replead.
Bryant filed his complaint on March 18, 2009. See Complaint under the Civil Rights Act, 42 U.S.C. § 1983, filed Mar. 18, 2009 (Docket # 2) ("Compl."). On September 25, 2009, defendants filed a motion to dismiss. See Notice of Motion to Dismiss, filed Sept. 25, 2009 (Docket # 13); Memorandum of Law in Support of Defendants' Motion to Dismiss, filed Sept. 25, 2009 (Docket # 14) ("Def. Mem."); Notice to Pro Se Litigant Motion to Dismiss Treated as Motion for Summary Judgment, filed Sept. 25, 2005 (Docket #15) ("Notice to Pro Se Litigant"). Bryant submitted opposition papers on October 9, 2009. See Affirmation in Opposition to Motion, filed Oct. 9, 2009 (Docket # 17) ("Pl. Aff."). Defendants filed a reply on November 2, 2009. See Reply Memorandum of Law in Further Support of Defendants' Motion to Dismiss, filed Nov. 2, 2009 (Docket # 18) ("Reply"). The case was referred to the undersigned on July 23, 2010. See Order Referring Case to Magistrate Judge, filed July 23, 2010 (Docket # 19).
The Court assumes the allegations in plaintiff's complaint are true for purposes of deciding the defendants' motion to dismiss. Also, in light of Bryant's pro se status, the Court will consider the factual allegations contained in his affirmation submitted in response to the defendants' motion, along with the medical records annexed to that affirmation. See, e.g., Woods v. Goord, 2002 WL 731691, at *1 n.2 (S.D.N.Y. Apr. 23, 2002) (considering pro se prisoner's factual allegations in briefs as supplementing the complaint); Burgess v. Goord, 1999 WL 33458, at *1 n.1 (S.D.N.Y. Jan. 26, 1999) ("In general, 'a court may not look outside the pleadings when reviewing a Rule 12(b)(6) motion to dismiss. However, the mandate to read the papers of pro se litigants generously makes it appropriate to consider plaintiff's additional materials, such as his opposition memorandum.'" (quoting Gadson v. Goord, 1997 WL 714878, at *1 n.2 (S.D.N.Y. Nov. 17, 1997) (citations omitted)).
In July 2005, Bryant was an inmate at the Sing Sing Correctional Facility. See Compl. at 3; Pl. Aff. at 3. Around that time, he was diagnosed with Hepatitis C and an outside infectious disease specialist prescribed a one-year treatment of Ribavirin capsules and Interferon injections. See id.
A few months into treatment, medical staff "arbitrarily" switched the Ribavirin capsules to a generic brand, which "is said to cause numerous side effects." Pl. Aff. at 3. Following the change, Bryant began to suffer symptoms that he attributes to the generic prescription. Id. He alleges that "[i]n just a few weeks, my entire body began to blister and swell, then pimples, that turned into terrible dark rashes, that covered my body from head to toes [sic]." Compl. at 3.
While Bryant states that defendants responded to his complaints by stating "not to worry, it is not a big deal, it will go away," he also alleges that the defendants gave him "numerous creams [and] medications," though he contends that this was done merely in an effort "to pacify him." Opposition Argument of Point III (Ex. B to Pl. Aff. at 16) ("Pl. Opp. III") ¶¶ 4, 6. He alleges that the defendants "knowingly saw [that] none of their so called miracle creams were working and still did nothing to relieve plaintiff's pain and suffering." Id. ¶ 5.
Dr. Bakshi was "in charge of monitoring" Bryant "during his treatment and providing the proper medical services needed." Opposition Argument of Point II (Ex. A to Pl. Aff. at 18) ("Pl. Opp. II") ¶ 2. Bryant contends that Dr. Bakshi, knowing that his "condition was [deteriorating,] was obligated to notify his superiors and or do everything in his [capacity] to help." Pl. Opp. III ¶ 2. After complaining to Dr. Bakshi "about these symptoms," Dr. Bakshi "encouraged [him] to stick with the treatment." Pl. Aff. at 3. "Dr. Bakshi prescribed a moisturizing [lotion] . . . claiming [that] it was 'just dry skin.'" Id. However, this did not provide any relief, and Bryant complained to Dr. Bakshi that his condition was worsening. Id.
With respect to Dr. John Perilli, the facility's head medical officer, Bryant alleges that he informed Bryant that "he had nothing to do with the change" in medication as the decision "came directly from [the] 'Central Office DOCS Health Services.'" Compl. at 3. Bryant contends that Dr. Perilli had to approve all treatment and medication prescribed to inmates. See Pl. Opp. III ¶ 3. Lastly, Bryant alleges that, according to Dr. Perilli, Dr. Lester Wright, the Deputy Commissioner of Health Services for DOCS, changed the treatment protocol for Hepatitis C to replace Ribavirin with a generic medication. See Pl. Aff. at 4. Bryant contends that Dr. Wright, like Dr. Perilli, had final approval over all treatments and prescriptions. See Pl. Opp. III ¶ 3.
In December 2006, after mailing letters to outside agencies and filing several grievances, Bryant was seen by a dermatologist, who "ordered a skin biopsy" and prescribed steroid injections. Compl. at 3; Pl. Aff. at 4; Inmate Grievance Complaint-42185, dated Dec. 15, 2006 (Ex. A to Pl. Aff. at 1). He alleges that this "proves that the defendants were [indifferent] to [his] suffering until the pressure on them was too much." Pl. Aff. at 4.
According to Bryant's medical records (annexed as Ex. C to Pl. Aff and hereinafter cited as "Medcial Record"), the medical staff first recorded "boils" developing on his skin on February 7, 2006. See Medical Record, dated Feb. 7, 2006 (Ex. C at 9). Starting in March 2006, records reflect that Bryant was prescribed topical treatments and examined regularly by facility medical staff. See, e.g., Medical Records at 3-27. In July 2006, medical records include notations that Bryant exhibited a rash, see Medical Record, dated July 10, 2006 (Ex. C at 20), that became progressively worse in December 2006, see Medical Record, dated Dec. 22, 2006 (Ex. C. at 22) ("Dec. 22, 2006 Medical Record"). In a medical record from September 12, 2006, a staff member recorded that Bryant had developed "numerous lesions on [his] back." Medical Record, dated Sept. 12, 2006 (Ex. C at 21). In an undated record immediately following, he or she ordered "meds" and for Bryant to avoid sun-exposure. Medical Record, undated (Ex. C at 21). In a medical record dated December 21, 2006, the examining physician ordered a dermatologist consult, see Medical Record, dated Dec. 21, 2006 (Ex. C at 22) and in a record dated December 22, 2006, stated that he would be put on a trial steroid treatment, see Dec. 22, 2006 Medical Record.
Bryant alleges that he sustained "scar[r]ing on 75% of [his] body" from "the severe skin rashes." Compl. at 3. Consequently, his "body aches and itches" constantly and he has trouble sleeping due to "extreme discomfort." Id. Bryant seeks monetary compensation of $2 million. See Compl. at 5.
Defendants have moved to dismiss on the ground that Bryant has failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act ...