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Zafuto v. Okeefe

United States District Court, Second Circuit

January 27, 2014

BRENT ZAFUTO, Plaintiff,
v.
Dr. OKEEFE, Oral Surgeon, and Nurse THOMAS, Medical Staff, in their individual capacities, Defendants.

DECISION AND ORDER

WILLIAM M. SKRETNY, Chief District Judge.

1. Brent Zafuto was at all relevant times an inmate in the custody of the New York Department of Corrections and Community Service ("DOCCS"). He brings this action under 42 U.S.C. § 1983, alleging that dental care and follow-up treatment he received in February of 2010 was deficient and violated his constitutional rights to be free from cruel and unusual punishment. Presently before this Court is Defendants' motion for summary judgment. For the following reasons, Defendants' motion is granted.

2. Under Rule 56 of the Rules of Civil Procedure the court can grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact." A fact is "material" if it "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A "genuine" dispute exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id . In determining whether a genuine dispute regarding a material fact exists, the evidence and the inferences drawn from the evidence "must be viewed in the light most favorable to the party opposing the motion." Adickes v. S. H. Kress & Co. , 398 U.S. 144, 158-59, 90 S.Ct.1598, 1609, 26 L.Ed.2d 142 (1970) (internal quotations and citation omitted). The function of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson , 477 U.S. at 249.

3. Zafuto alleges that on February 17, 2010 he was escorted from Collins Correction Facility to Attica Correctional Facility for a dental procedure. (Am. Compl., ¶¶ 15-16; Docket No. 4.) Defendant Dr. O'Keefe examined him and informed him that his "lower wisdom tooth'" required extraction.[1] ( Id., ¶ 17.) Dr. O'Keefe then performed the procedure, but, according to Zafuto, "although Okeefe was fully aware that he would likely suffer an infection... Okeefe acted with a conscious disregard of the substantial risk of harm to Plaintiff, [by] refus[ing] to provide any antibiotics." ( Id., ¶ 21.)

Thereafter, according to Zafuto, a severe infection took hold, and he requested medical care. (Zafuto Decl., ¶ 8; Docket No. 30.) But Nurse Thomas, who examined him that night, failed to provide adequate medical care despite an obvious infection. (Am. Compl., ¶ 37.) Instead, she instructed him to simply drink two glasses of water. ( Id., ¶ 36.)

According to Zafuto, over the next few days the infection only grew worse. ( Id., ¶¶ 38-40.) And, on February 21, 2010, he submitted a grievance on plain paper (because it was a Sunday and no designated grievance forms were available), stating that he "was in need of medical services and had been refused treatment by Nurse Thomas." (Zafuto Decl., ¶¶ 12-13.) The next day, February 22, 2010, he awoke to "increased pain, now to such a degree as to render [him] nearly unable to physically move any part of his body." (Am. Compl., ¶ 40.) He again requested that he be seen by the medical staff, and this time he was examined and eventually escorted to the hospital. ( Id., ¶¶ 45-51.)

Once there, he was forced to undergo a second surgery near the infection site to correct a cyst "that was present during" his initial dental procure. (Zafuto Decl., ¶ 17.) He remained in the hospital for close to a month, and, on March 14, 2010, was finally released. ( Id., ¶ 18.)

Nearly a year after this series of events, Zafuto was scheduled to have another dental procedure performed on January 7, 2011. ( Id., ¶ 21.) Based on his experience in February of 2010, however, he refused treatment and submitted a grievance explaining his refusal. ( Id., ¶ 22.) That grievance, seeking to receive dental care from someone other than Dr. O'Keefe, was denied - as was an appeal of that decision. ( Id., ¶¶ 23-24.)

4. Defendants do not presently contest the merits of Zafuto's suit. Instead, they move for summary judgment on grounds that he failed to exhaust administrative remedies as required by the Prison Litigation Reform Act of 1995 ("PLRA").

The PLRA provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies in cases covered by the PLRA is mandatory, even when the prisoner seeks relief not available through grievance proceedings, such as monetary damages. Porter v. Nussle , 534 U.S. 516, 524, 122 S.Ct. 983, 988, 152 L.Ed.2d 12 (2002).

The Nussle Court reasoned that requiring prisoners to utilize the administrative grievance process would reduce the quantity of prisoner suits, filter out frivolous claims, and clarify the legal issues in those cases that warrant federal court review. Id . at 524-25. In the interest of furthering these objectives, the Supreme Court held that "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Id . at 532.

5. The PLRA further requires "proper exhaustion, " which "means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)." Ruggiero v. County of Orange , 467 F.3d 170, 175-76 (2d Cir. 2006) (quoting Woodford v. Ngo , 548 U.S. 81, 90-91, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006)) ("Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings."). Thus, inmates "must complete the administrative review process in accordance with applicable procedural rules - rules that are defined not by the PLRA, but by the prison grievance process itself." Jones v. Bock , 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (internal citation and quotation omitted).

6. The New York State Department of Corrections and Community Service employs a three-step Inmate Grievance Program that requires an inmate to: (1) file a grievance with the Inmate Grievance Review Committee within 21 days of the alleged violation; (2) appeal to the superintendent within four working days of receiving the Inmate Grievance Resolution Committee's adverse written response; and appeal to the Central Office Review Committee in Albany, New York within four working days of receipt of the superintendent's adverse written response. See 7 N.Y.C.R.R. § 701.5; Abney v. McGinnis , 380 F.3d 663 (2d Cir. 2004).[2]

7. Exhaustion under the PLRA, however, is not jurisdictional, Richardson v. Goord , 347 F.3d 431, 434 (2d Cir.2003), but is an affirmative defense, Jenkins v. Haubert , 179 F.3d 19, 28-29 (2d Cir.1999), that is itself subject to certain defenses such as estoppel, Ziemba v. Wezner , 366 F.3d 161, 163 (2d Cir. 2004). In ...


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