The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge
Donald Mack Bennett has filed a pro se complaint under 42 U.S.C. § 1983 raising allegations of deliberate indifference by medical staff from February through April 2008 while he was a pretrial detainee at the Westchester County Jail in Valhalla, New York. The parties have consented to this matter being decided by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Defendants have filed a motion for judgment on the pleadings, which we treat as a motion for summary judgment. For the reasons discussed below, Bennett's claims against defendants are dismissed.
Bennett alleges that in February 2008 he was held as a pretrial detainee at the Westchester County Jail in Valhalla, New York ("Westchester County Jail"). See Complaint Under the Civil Rights Act, 42 U.S.C. § 1983, filed May 29, 2009 (Docket # 7) ("2d Complaint"); Inmate Classification Status Notification, dated Feb. 16, 2008 (annexed as Ex. D to Notice of Motion, filed Apr. 16, 2010 (Docket # 30) ("Notice of Motion")). During his detention, medical staff misdiagnosed him. See 2d Complaint at 3. As a result, he was prescribed both antibiotic cream and pills which triggered a severe reaction that caused swelling, itching and other irritation around his genitals and upper thighs. See id. He alleges that defendant Dr. Tracy James prescribed him an antibiotic cream and defendant Dr. Goldberg of the Chronic Care Unit wrote him a prescription for "a very strong  antibiotic" to treat Bennett for herpes. Id. However, he was later told by another staff member, Nurse Practitioner Maria Taylor, that the herpes diagnosis was incorrect. Id. He alleges that Dr. James "decided to make [him] suffer" by ordering another staff member, Dr. Bailey, not to "give [him] anything." Id. In addition, the "Chronic Care Doctor," presumably Dr. Goldberg, refused to see him for four months. Id.
Bennett contends that as a result of defendants' "mal-practice [sic]" and "[n]egligence of many dis-order [sic][,]" he suffered considerable pain. Id. He had difficulty "walking and bending or going to [the] bathroom" and further alleges that the cream turned him "into a vegetable unable to focus on correct thinking." Id.
Bennett alleges that the treatment at issue occurred between February and April 2008. Id. at 2. He admits in his complaint that he never filed a grievance concerning these allegations. Id. at 4. He also asserts that he never informed any official of the problem, stating in his complaint that it was "none of there [sic] business/plus they [sic] hands are tied when it comes to medical problem[s]. They don't [sic] get involv[ed]." Id. at 5.
B. Procedural History and Evidence Concerning Exhaustion
Bennett signed his original complaint in this matter on August 4, 2008, see Complaint Under the Civil Rights Act, 42 U.S.C. § 1983, filed Nov. 18, 2008 (Docket # 2), and filed the current complaint on May 29, 2009, see 2d Complaint. On January 14, 2010, District Judge William H. Pauley III held a telephone conference. See Transcript of Proceeding held on Jan. 14, 2010, filed Feb. 18, 2010 (Docket # 25) ("Tr."). During the telephone conference, Judge Pauley questioned Bennett about not filing a grievance in this case. Id. at 9. Bennett admitted that he had filed grievances in the past but had not filed one alleging that he was prescribed the wrong medication in 2008. Id. at 12. Bennett also made the following statement:
No, I have not send the grievance. I explained to you that I went with the 1983 because I was doing a shorter time, county time, and then when it came around for the grievance and I did want to write it, they told me, this is what they told me, Oh, it's too late now, you can't do it now, you can't fill out no grievance now, which, by the law, the correction law, you know, there's no, there's specific guide for them to have five days, they answer you back. And there's times where I was never answered back. Against medical too, against medical.
Following the telephone conference, Bennett filed a document entitled "Motion to Denie [sic] Grievance Issue because said reasons against Plaintiff," in which he asserted he was told that he could not grieve matters concerning medical staff. See Motion to Denie [sic] Grievance Issue because said reasons against Plaintiff, filed Jan. 26, 2010 (Docket # 24) ("Pl. First Mot."). In his motion, Bennett urges the Court to allow his medical records to "take the place of Grievances." Id. at 3. He also attached copies of five letters from the State Commission of Correction, dating from October 28, 2009 through July 9, 2009, some of which informed Bennett that the Citizen's Policy and Complaint Review Council had denied grievances he had filed -- presumably relating to other medical matters. See Letters, dated Oct. 28, 2009, Nov. 17, 2009, June 10, 2009, June 16, 2009, July 9, 2009 (annexed to Pl. First Mot.).
On April 16, 2010, defendants moved for judgment on the pleadings on the grounds of failure to exhaust and failure to state a claim. See Notice of Motion; Memorandum of Law in Support of Motion for Judgment on the Pleadings Pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, filed Apr. 16, 2010 (Docket # 31) (Def. Mem.); Notice to Pro Se Litigant Who Opposes a Rule 12(c) Motion for Judgment on the Pleadings, filed Apr. 16, 2010 (Docket # 32) ("Notice to Pro Se Litigant"). In support of their motion, defendants submitted an affidavit from Anthony Amicucci, the warden of the Westchester County Jail, who avers that Bennett received the Inmate Rules and Regulations handbook at the start of his detention which advised him of the grievance process and its steps. See Affidavit, dated Apr. 14, 2010 (annexed as Ex. E to Notice of Motion) ("Amicucci Aff.") ¶ 6. Amicucci also states that a review of the grievance logs for the period of February 2008 to May 2008 does not contain a record showing that Bennett ever attempted to file a grievance in connection with his allegations. Id. ¶ 17.
Bennett responded on May 17, 2010. See Notice of Motion Against Defendants Summary Judgment, filed May 17, 2010 (Docket # 35) ("Pl. Mot."). He also submitted a sixth letter from the Commission of Corrections denying a grievance dated January 20, 2010. See Letter to Donald Mack Bennett from Daniel L. Stewart, dated Jan. 20, 2010 (annexed to Pl. Mot. at 27) ("January 20, 2010 Letter"). On the face of this letter he wrote: "proof of Den[y]ing every Grievance." Id. Defendants filed a reply on June 3, 2010. See Reply Memorandum of Law, filed June 3, 2010 (Docket # 36).
In their motion papers, the defendants submitted documents outside the pleadings to support their position that this case should be dismissed on exhaustion grounds. They failed to provide Bennett with proper notice informing Bennett of what steps he was required to take to respond to their motion as required by Local Civil Rule 12.1. Instead, defendants sent Bennett a notice that discussed only what constituted a proper response to a motion for judgment on the pleadings under Rule 12(c). See Notice to Pro Se Litigant. They also failed to include a copy of the Federal Rule of Civil Procedure 56, as required by Local Rule 12.1.
Accordingly, this Court issued an Order providing Bennett with the proper Rule 12.1 notice and a copy of Rule 56. See Order, filed July 7, 2010 (Docket # 38) ("July 7, 2010 Order"). The Order also granted Bennett another opportunity to supply any additional evidence on the question of exhaustion. See id. In response, Bennett filed a document to which he attached an affidavit that reiterated assertions made in his prior submissions. See Notice of Motion, filed July 12, 2010 (Docket # 39) ("July 12 Resp."). He also alleged, for the first time, that he could not exhaust due to "threats" and that his failure to exhaust should be excused because he suffered from severe ...