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Hilbert v. Fischer

United States District Court, Second Circuit

September 4, 2013

BRIAN FISCHER, et al., Defendants.


EDGARDO RAMOS, District Judge.

Plaintiff Stanley Hilbert ("Plaintiff'), proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983, the Americans With Disabilities Act and the Rehabilitation Act against Brian Fischer, Commissioner of the New York State Department of Corrections and Community Supervision ("DOCCS"); Green Haven Correctional Facility ("Green Haven") Superintendent William Lee; and various Green Haven "contractors and employees" (collectively, the "Defendants").[1] Presently before the Court is Defendants' motion to partially dismiss Plaintiff's Amended Complaint.[2] Doc. 65. Specifically, Defendants seek dismissal of Plaintiff's claim of deliberate medical indifference for failure to exhaust administrative remedies. Defendants Fischer and Lee move in the alternative to dismiss Plaintiff's deliberate indifference claim because Plaintiff has failed to demonstrate that they were personally involved in the alleged Constitutional violation. For the reasons discussed below, Defendants' motion for partial dismissal of the Amended Complaint is GRANTED.

I. Factual Background

The Court accepts the factual allegations in the Amended Complaint as true for purposes of Defendants' motion. Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010).

In September 2011, Plaintiff was incarcerated at Marcy Correctional Facility's ("Marcy") Residential Mental Health Unit ("RMHU"). Amended Complaint ("Am. Compl.") ¶ 42. Plaintiff sought mental health treatment at that facility; however, due to the unavailability of observational cells, he was transferred to Green Haven.[3] Id. ¶¶ 42-43. On September 27, 2011, at approximately 10:40 am, while still at Green Haven, Plaintiff complained of chest pains and was escorted to the facility infirmary. Id. ¶ 45. After Plaintiff had been examined, Defendants Kowalchuk, Rodriguez and Surprenant escorted him back to his cell. Id. ¶ 47. On the way back to the cell, Surprenant told Plaintiff that he was "full of shit, " that he was "bullshitting and wasting his time, " and that "this ain't Marcy [and] we have another way to treat mental illness and you're going to find out soon enough." Id. ¶¶ 48-50. Upon hearing this, Plaintiff requested that Surprenant allow him to see a mental health therapist. Id. ¶ 51. Defendant Rodriguez then interjected and said that "we got some therapy for you" and that "your [sic] going to need a physical therapist to teach you how to walk again." Id. ¶ 52.

Upon returning to his cell, Plaintiff was ordered to face the wall, which he did. Id. ¶ 53. Surprenant then instructed Plaintiff, who was still in restraints, to turn around and face him. Id. ¶ 54. After Plaintiff complied, Surprenant "got nose to nose" with him and stated, "you played games and wasted my time. I told you we have another way to treat mental illness." Id. ¶ 55. At that point, Rodriguez "[s]uddenly" punched Plaintiff in the left eye. Id. ¶ 56. Defendants Kowalchuk, Rodriguez and Surprenant then began beating Plaintiff "mercilessly with their hands and feet, " and "punched and kicked [him] repeatedly about the body, face and head." Id. ¶¶ 57-58. Plaintiff alleges that upon information and belief, Defendant Rodriguez then "stepped on [his] lower back while Defendants Surprenant, Tillotson, Kowalchuk, Keran [sic], and Brothers held [him] down and removed the restraints." Id. ¶ 59. Defendants then left the cell and locked it behind them. Id. ¶ 61.

Plaintiff alleges that he then informed Defendant Kowalchuk that he was in "excruciating pain and need[ed] medical attention, " id. ¶ 60; however, Kowalchuk refused Plaintiff's request. Id. ¶ 62. Approximately one hour later, Defendant Miller, a nurse, arrived at Plaintiff's cell with a corrections officer to take photographs. Id. ¶ 63. At that point, Plaintiff's nose was bleeding profusely, he was bleeding out of his left eye, and he could barely stand up. Id. ¶ 64. Plaintiff informed Miller that he was in excruciating pain, but she did not "even [perform] a cursory examination... [and] told Plaintiff that there was nothing wrong." Id. ¶¶ 64-65. Plaintiff alleges that Miller told him to "stop whining" and that crying is what babies do. Id. ¶ 66. She then exited the cell with the corrections officer. Id. ¶ 67.

Over the next two days, from September 27 to 29, 2011, Plaintiff alleges that he requested medical assistance for his injuries from Defendants Morlas, Patil, Panuto, Zwillinger, O'Conner, Brandow, Hannd, Sposato, Santoro, Edwards, Kutz, Kowalchuk, Lamay, and Gotsch, and that these Defendants all denied his requests. Id. ¶¶ 68-81. On the morning of September 29, 2011, a doctor came to Plaintiff's cell and, after examining him, determined that he was seriously injured and in need of immediate medical attention. Id. ¶ 82. Plaintiff was then transferred to an outside hospital, Westchester County Medical Center, where he was treated and later released. Id. ¶ 83. Plaintiff claims that he suffers from frequent migraines, "extreme debilitating back pain, " loss of vision and a broken nose. Id. ¶ 84.

II. Plaintiff has not Exhausted Administrative Remedies with Respect to his Eighth Amendment Deliberate Medical Indifference Claim

Plaintiff claims that Defendants violated his Eighth Amendment rights by using unnecessary and excessive force against him and by acting with "deliberate indifference or reckless disregard toward [his] serious medical needs by failing to take the steps necessary to ensure that [he] received treatment for his injuries." Am. Compl. ¶ 87. Defendants argue that Plaintiff's deliberate medical indifference claim should be dismissed because he failed to exhaust the administrative remedies available under DOCCS' three-tiered Inmate Grievance Program ("IGP"). Specifically, Defendants argue that Plaintiff's grievance only alleged that he was assaulted by several officers at Green Haven, and did not include any allegations that Defendants were deliberately indifferent to his medical needs.

a. Prison Litigation Reform Act

The Prison Litigation Reform Act ("PLRA") "requires prisoners to exhaust prison grievance procedures before filing suit." Jones v. Bock, 549 U.S. 199, 202 (2007) (citations omitted). The PLRA's exhaustion requirement is "mandatory, " Porter v. Nussle, 534 U.S. 516, 524 (2002), and "applies to all inmate suits about prison life.'" Johnson v. Killian, 680 F.3d 234, 238 (2d Cir. 2012) (quoting Porter, 534 U.S. at 532). The Supreme Court has held that "the PLRA exhaustion requirement requires proper exhaustion." Id. (quoting Woodford v. Ngo, 548 U.S. 81, 93 (2007)) (internal quotation marks omitted). That is, "prisoners must complete the administrative review process in accordance with the applicable procedural rules-rules that are defined not by the PLRA, but by the prison grievance process itself" Id. (quoting Jones, 549 U.S. at 218).

In New York, prisoners must exhaust each level of the three-tiered IGP. Kasiem v. Switz, 756 F.Supp.2d 570, 575 (S.D.N.Y. 2010). Under the IGP, an inmate must: (i) file a complaint with the grievance clerk; (ii) appeal an adverse decision by the Inmate Grievance Resolution Committee ("IGRC") to the superintendent of the facility; and (iii) appeal an adverse decision by the superintendent to the Central Officer Review Committee ("CORC"). N.Y. Comp. Codes R. & Regs. ("NYCRR") tit. 7, § 701.5. The IGP regulations provide that an inmate must submit a complaint on an inmate grievance complaint form, or on plain paper if the form is not readily available. 7 NYCRR § 701.5(a)(1). The regulations further require that "the grievance... contain a concise, specific description of the problem and the action requested." 7 NYCRR § 701.5(a)(2).

Although failure to exhaust is "an absolute bar to an inmate's action in federal court, " George v. Morrison-Warden, No. 06 Civ. 3188 (SAS), 2007 WL 1686321, at *2 (S.D.N.Y. June 11, 2007), the Second Circuit has recognized three grounds for exceptions to the exhaustion requirement. See Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004). First, a court must ask "whether administrative remedies were in fact available' to the prisoner." Id. (citation omitted). Second, a court must determine whether the defendant forfeited the affirmative defense of non-exhaustion by failing to raise or preserve it, or whether the defendant's own actions estop him from raising the affirmative defense of non-exhaustion. Id. Finally, if the court finds that administrative remedies were available to the plaintiff, and that the defendant is not estopped and has not forfeited his non-exhaustion defense, a court should ...

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