The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:
Plaintiff Kwame Ferguson, an inmate formerly housed at the Otis Bantum Correctional Center ("OBCC"), brings this action pro se under 42 U.S.C. § 1983, alleging that the defendants, Correction Officer Cai and the City of New York, were deliberately indifferent to his medical needs during his incarceration, in violation of the Eighth Amendment. Defendants move to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, the motion to dismiss is granted.
Ferguson is an inmate formerly housed at the OBCC, a New York City correctional facility on Rikers Island. Ferguson is a diabetic. His claims arise out of a single incident involving one prison official, Correction Officer Cai.
On August 2, 2011, at approximately 9:20 p.m., Ferguson informed Officer Cai that he was a diabetic and needed to go to the medical clinic. In response to this request, Officer Cai told Ferguson that he would call for an escort. The medicine that Ferguson required, Lantus, is taken only at night. After waiting approximately one hour, Ferguson again approached Officer Cai, and explained that he needed to go to the clinic because he needed his insulin medication. Ferguson alleges that, around the time of the second request, he knew that his blood glucose level was elevated because he began "going in and out of con[s]ciousness," and was experiencing "temporary blindness, neuralgia pain from neuropathy and swelling in [his] left leg." Am. Compl. at ECF 4. Ferguson then took "a few metformin hydrochloride 500mg" because he "didn't want to fall into a hyperglycemia coma." Id. Ferguson was not escorted to the clinic that night.
The following morning, Ferguson woke up at approximately 5:00 a.m., suffering "severe pain." Id. Ferguson alleges that later on the evening of August 3, 2011, he questioned Officer Cai about his failure to provide an escort to the clinic. Officer Cai responded that "he forgot to call." Id.
On August 24, 2011, Ferguson filed his original Complaint. On December 22, 2011, defendants filed a motion to dismiss. On January 10, 2012, Ferguson filed an Amended Complaint which materially amended his pleading in several respects.
On January 30, 2012, the Court issued an Order alerting the parties that, upon review of the parties' submissions, it had identified a threshold issue. The Court noted that although Ferguson alleged in his Amended Complaint that the grievance procedures at the OBCC do not cover his claim, the Inmate Grievance Resolution Program, which governs all grievance procedures at OBCC, appeared to cover claims like Ferguson's, which arose out of incidents involving Department of Correction employees. The Court's Order instructed:
By February 8, 2012, defendants are directed to submit to the Court an amended motion to dismiss, limited to the narrow issue of whether a grievance procedure exists that covers plaintiff's claim, and whether plaintiff properly exhausted those procedures. The Court will then evaluate the motion to dismiss limited to the issue of administrative exhaustion. If the Court determines that such a ground is not dispositive, the Court will afford the defendants the opportunity to move to dismiss on other grounds.
January 30, 2012 Order at 1 (Dkt. 17).
In a letter dated February 7, 2012, defendants explained the circumstances surrounding Ferguson's attempts to satisfy available grievance procedures. Defendants explained:
DOC's grievance procedure does, indeed, cover Plaintiff's claims, and Plaintiff's failure to proceed through all the required steps ordinarily would require dismissal of his claims based on his failure to exhaust his administrative remedies. In the present case, however, DOC responded to Plaintiff's grievance by mistakenly advising him that his claim was not grievable. Under these circumstances, Plaintiff's failure to exhaust likely would be excused, either because DOC's response to Plaintiff's attempts to grieve, albeit incorrect, would estop DOC from asserting the exhaustion defense because DOC led Plaintiff to believe his administrative remedies were not available, or because DOC's response presents a "special circumstance" which would justify non exhaustion. . . . Accordingly, Defendants do not wish to seek dismissal based on Plaintiff's failure to exhaust. February 8, 2012 Order at 2--3 ...