The opinion of the court was delivered by: Denise Cote, District Judge:
Plaintiff pro se Daniel Castro-Sanchez brings this action pursuant to 42 U.S.C. § 1983 against the New York State Department of Correctional Services ("DOCS"),*fn1 the New York State Office of Mental Health ("OMH"), and Corrections Officers James Thorpe ("Thorpe"), Harold Hanaman (s/h/a "Hannaman"), Clifford Gunsett ("Gunsett"), George Wesley ("Wesley"), and McKenzie R. Lambert ("Lambert"). The plaintiff, an inmate at Green Haven Correctional Facility ("Green Haven"), alleges that the individual defendants violated his constitutional rights by, inter alia, refusing him medical and psychiatric care, retaliating against him for the filing of grievances, and using excessive force against him. The plaintiff also seeks an injunction against DOCS and OMH that would force these state agencies to comply with recent New York legislation relating to the training and supervision of correctional officers handling mental health inmates.
The defendants have moved to dismiss the complaint, arguing that the plaintiff has failed to exhaust available administrative remedies with respect to some of his claims, and that for others he has failed to state a claim upon which relief may be granted. For the following reasons, the motion to dismiss is granted in part.
The following facts are taken from the plaintiff's complaint or documents integral to it unless otherwise noted, and are taken to be true for purposes of this motion. LaFaro v. New York Cardiothoracic Group, PLLC, 570 F.3d 471, 475 (2d Cir. 2009). In deciding a motion to dismiss, a court may consider "any written instrument attached to [the complaint] as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are integral to the complaint." Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004) (citation omitted). The plaintiff has attached to his complaint "all my grievances, complaints and appeals in chronological order" that he claims support the allegations in the complaint, as well as his assertion that he has exhausted all administrative remedies available to him. The defendants seek to supplement the record with additional information about the outcome of several of the plaintiff's appealed grievances. The defendants' submissions fill the gaps in the documentation the plaintiff has provided. Accordingly, all of these documents submitted by the defendants are properly considered in connection with defendants' motion to dismiss without converting the motion to one for summary judgment. See Ortiz v. McBride, 380 F.3d 649, 653 (2d Cir. 2004) (treating failure to exhaust issue as one properly raised under 12(b)(6)).*fn2
I. Plaintiff's Claims against the Individual Defendants
The plaintiff is part of Green Haven's Transitional
Intermediate Care Program ("TRICP") for patients receiving mental health care. He is housed in gallery A-3 with other TRICP inmates. The plaintiff's primary language is Spanish, and he has a very limited understanding of English. The individual defendants are correctional officers who work as guards in A-3.
From January 30 to September 20, 2010, the plaintiff filed a series of grievances against the individual defendants. According to the plaintiff, the acts underlying the later grievances were committed at least in part to retaliate against the plaintiff for his initial grievance regarding events occurring on January 30. The plaintiff also alleges, more generally, that he was singled out because of his limited English language abilities and that there is a pattern of abuse by corrections officers directed at "mental health inmates in this block".
A. January 30, 2010 Strip Frisk
The plaintiff's initial grievance, GH-69019-10,*fn3 recounts an incident that occurred on January 30, 2010. As the plaintiff prepared to head to the yard for recreation, Thorpe ordered him to wait until recreation was finished. Thorpe then ordered the plaintiff to empty his pockets and place his hands on the wall. Thorpe proceeded to aggressively pat down the plaintiff, then pulled down the plaintiff's pants and "touched [plaintiff's] intimate parts . . . including [plaintiff's] buttocks[.]"*fn4
Hannaman approached the pair while the pat-down was occurring. Two of the items that the plaintiff had removed from his pockets were a pack of cigarettes and a lighter. After the pat-down concluded, the plaintiff asked if he could retrieve these items. Hannaman told the plaintiff that he could not; these items were "lost". The plaintiff did not receive a contraband receipt for these confiscated items.
Thorpe then began to speak about another inmate, Santos Franco. While the plaintiff could not understand the majority of what Thorpe sought to convey, the plaintiff took the conversation to mean that Thorpe was upset at Franco and sought to "send Franco a message through [the plaintiff][.]" The plaintiff later confirmed with Franco that Franco had had numerous run-ins with Thorpe.
Green Haven Superintendent William Lee ("Lee") denied the plaintiff's grievance on July 28, 2010, stating that the allegations could not be substantiated and Thorpe denied that a "pat frisk" had taken place. The plaintiff appealed the denial of his grievance to the Inmate Grievance Program's ("IGP") Central Office Review Committee ("CORC") on August 9, 2010. CORC denied the plaintiff's appeal on October 20, 2010.
B. February 3, 2010 Refusal to Release for Medication
The plaintiff's next grievance, GH-69105-10, is dated February 25, 2010, and concerns events that took place on February 3. According to plaintiff, Lambert failed to release the plaintiff from his cell at an appointed time for a scheduled medication run. Early in the morning of February 3, Lambert made the rounds of the cellblock, and the plaintiff put his name on the list of inmates to be released for a 7 a.m. medication run. Fifteen minutes later, Lambert opened cells but skipped the plaintiff's. The plaintiff called out to a neighboring inmate, Billy Rivera ("Rivera"), to remind Lambert that the plaintiff's cell had been skipped. Lambert, however, told Rivera that the plaintiff had not put his name down for the medication run. Although Rivera remonstrated with Lambert that the plaintiff was sick and needed to take medication, Lambert still refused to release the plaintiff from his cell. The CORC denied the plaintiff's grievance appeal on July 7, 2010.
C. February 16, 2010 Denial of "Medical Keeplock"
The plaintiff filed his next grievance, GH-69189-10, on March 8, 2010, concerning events occurring from February 16 to 18. On February 16, plaintiff was attending the TRICP program when he began to feel unwell. He told the staff member running the program (who is referred to by the plaintiff as "Miss Jacqueline"), who notified a corrections officer. That officer gave the plaintiff an emergency pass for the medical clinic. A doctor at the clinic gave the plaintiff a permit that would allow the plaintiff to remain in his cell on "medical keeplock."*fn5
Arriving back at his cellblock, the plaintiff gave the permit to the officer on duty, who recorded the plaintiff (apparently mistakenly) as on regular, as opposed to medical, keeplock.
That same day, the plaintiff's access to a scheduled psychological services unit ("PSU") call-out was denied by Wesley, on account of the plaintiff's erroneously recorded "regular" keeplock status. Hannaman, Wesley's superior, also refused to let the plaintiff go to the PSU call-out after the plaintiff appealed to him. Because of his erroneously recorded keeplock status, the plaintiff was denied access to the commissary on February 16 and his medication runs on February 16 and 17. The plaintiff does not indicate of what medication(s) he was deprived. The keeplock period ended on February 18, when the plaintiff was allowed to go on his regular medication run.
Superintendent Lee denied the plaintiff's grievance on July 28, 2010. The appeal statement on the denial of grievance form is blank,*fn6 and CORC's custodian of records avers that CORC has no record of an appeal of GH-69189-10.
D. March 11, 2010 Threats and Denial of PSU Call-Out
Although he does not specifically mention the incidents in his complaint or accompanying Statement of Facts, the plaintiff has attached a March 29, 2010 grievance, GH-69325-10, relating events of March 11, 2011. The allegations contained therein will be considered incorporated into the plaintiff's complaint.
For several days prior to March 11, 2011, English-speaking inmates in the plaintiff's cellblock had been warning the plaintiff, through interpreters, that Thorpe, Wesley, Hann aman, and other corrections officers were actively discussing the plaintiff and threatening to "break [him] up." On the morning of March 11, the plaintiff was returning to his cell from a medication run when he noticed Thorpe trailing him. Thorpe confronted the plaintiff when they reached the plaintiff's cell. Standing directly in front of the plaintiff's cell, Thorpe clenched his fists and began speaking in English. The plaintiff understood only a limited amount of what Thorpe said, but did hear Thorpe refer to a grievance and the plaintiff's fellow inmate Franco. The plaintiff then heard Thorpe say, "motherfucker, Puertorican [sic]", after which Thorpe "grabbed his crotch area[,] saying 'for you.'" Later that day, another inmate told the plaintiff to be careful because Thorpe and Wesley had been overheard talking about him, with one saying, "[T]hat damn Puertorican [sic], he's going to pay for having written a grievance."*fn7
At "count time", the plaintiff asked Lambert whether the plaintiff had a PSU call-out scheduled. According to the plaintiff, "Ms. Jacquelonie"*fn8 had told him that he had an emergency PSU call-out scheduled for that afternoon. Lambert, however, told the plaintiff that there was no such call-out scheduled, and therefore logged the plaintiff for an afternoon gym call-out. When "Ms. Jacquelonie" called the corrections officers on the plaintiff's cellblock to have him produced at the PSU, the plaintiff claims that the officers "lied to her."
Grievance GH-69325-10 was denied by Superintendent Lee on July 9, 2010. The plaintiff appealed to CORC, which denied ...