The opinion of the court was delivered by: Thomas P. Griesa, U.S. District Judge
Plaintiff Kareem Richardson filed this complaint pursuant to 42 U.S.C. § 1983 alleging that he was injured while in prison and did not promptly receive sufficient medical care. The action is brought against the City of New York, the Commissioner of the New York Department of Corrections, and Prisoners Health Services, and a Dr. Parks of PHS. Defendants move to dismiss for lack of personal jurisdiction and failure to state a claim.
The court should grant the motion.
The pertinent facts are drawn from the complaint, facts subject to judicial notice, and plaintiff's in forma pauperis petition.
Plaintiff Kareim Richardson is incarcerated in the George Motchan Detention Center ("GMDC") in East Elmhurst, New York. He filed this complaint on August 10, 2011, asserting that he badly injured his knee while in prison and did not receive sufficient medical care in a timely manner. He claims to have suffered a broken leg, emotional and mental distress, and pain and suffering. Although the complaint is difficult to follow, it appears that plaintiff is alleging that he suffered delays and difficulties in obtaining medical treatment on his knee, and was only able to achieve such treatment after great efforts on his part. The reason for his knee injury apparently had to do with "unleveled" floors in the "east gym" of the GMDC. Richardson appears to be asserting claims of deliberate indifference to his serious medical needs in violation of the Eighth Amendment of the United States Constitution.
In his form complaint, Richardson answered "No" when asked whether he had filed any grievances in prison regarding this situation. He also answered "Yes" when asked whether his prison has a grievance procedure for inmates, but said "No" when asked if it covered the claims asserted in this case. In response to a question as to why he did not utilize the grievance procedure, he wrote that the grievance procedure does not provide for monetary damages in the amount he is requesting. He also stated that he told a few prison guards about his claim.
Defendants have set forth facts indicating that there is a grievance procedure for claims regarding medical care, such as Richardson's. This policy is known as New York City Department of Health and Mental Hygiene's Health Care Access and Improvement, Correctional Health Services Interdisciplinary Policy Number 16 ("Policy Number 16"). Policy Number 16 allows an inmate to file a complaint about his actual or proposed medical treatment, get a second opinion, and appeal any treatment decision. The staff of the prison is required to assist prisoners in writing up their complaints if prisoners so request. Prisoners are given a brochure notifying them of their rights to make complaints and obtain second opinions. Richardson did not avail himself of this procedure before filing this suit.
Defendants also point out that the New York Department of Corrections has a disciplinary procedure that inmates may utilize for other types of grievances. This procedure is described in many judicial decisions, including Piper v. City of New York, No. 02 Civ. 1708 (WHP), 2004 U.S. Dist. LEXIS 29214, at *6 (S.D.N.Y. Mar. 17, 2004).*fn1 In short, it requires filing a grievance with the Inmate Grievance Review Committee ("IGRC"), which may then be resolved either informally by the IGRC or through a formal hearing by the IGRC. Then if the inmate is dissatisfied, he may appeal first to the New York Department of Correction Central Office Review Committee ("CORC"), then to the facility warden, and ultimately to the Board of Correction. Id. To properly exhaust one's administrative remedies, all five steps must be complied with. Id. at *6-7. Richardson did not avail himself of this procedure before filing this suit.
Richardson also filed an in forma pauperis application along with the complaint, in which he indicated under penalty of perjury that in the last twelve months, he had not received any money from any source. He also answered "No" when asked whether he has "any money, including any money in a checking or savings account." In the application, Richardson also requested and authorized the prison to send this court a copy of his prison account statement for the last six months. His account statement shows that he received a number of deposits in his inmate account in prison, for a total of $1845.50, within the six-month period preceding his complaint this lawsuit.
Defendants move to dismiss the case on a number of grounds, including plaintiff's failure to promptly serve two of the defendants, misrepresentations on plaintiff's in forma pauperis application, and plaintiff's failure to exhaust his administrative remedies in prison. Plaintiff never responded to the motion.
Failure to Serve Parks and PHS
Two defendants, Parks and PHS, move to dismiss for lack of service. Under Rule 4(m) of the Federal Rules of Civil Procedure, a plaintiff has 120 days to serve a defendant. Here, the court entered an order of service on September 15, 2011, directing service within 120 days. All defendants have been served except Parks and PHS. The 120-day ...