United States District Court, S.D. New York
ORDER ADOPTING REPORT AND RECOMMENDATION
PAUL A. CROTTY, District Judge.
Pro se Plaintiff Luis Paulino Rodriguez ("Rodriguez") brings this action against the Warden of the Metropolitan Correctional Center ("MCC") and Dr. Bussanich ("Bussanich"), clinical director of the MCC, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). He alleges that, while a pretrial detainee at the MCC, he received inadequate medical attention following an injury he sustained. Bussanich now moves to dismiss the complaint pursuant to Fed.R.Civ.P. 12(c). On August 5, 2014, Magistrate Judge Sarah Netburn issued a Report and Recommendation & R") that the Court deny Bussanich's motion. Dkt. 36. Bussanich filed objections to the R & R on September 16, 2014. Dkt. 48. For the following reasons, the Court adopts Magistrate Judge Netburn's R & R, but grants limited discovery on the issue of exhaustion of remedies.
A. Factual and Procedural Background
On November 28, 2012, Rodriguez fell from the stairs at the MCC and sustained injuries to his head and back. R & R at 2. He experienced severe complications from these injuries. Id. at 2-3. He filed grievances concerning his medical treatment three times using the MCC's Inmate Request to Staff forms and once by email. Id. at 2-3. On January 9 and 10, 2013, a paralegal at the office of his attorney wrote to the MCC's legal and medical departments requesting medical assistance for Rodriguez. Id. at 3-4.
Rodriguez filed his complaint on May 21, 2013, seeking $2.5 million in compensatory damages and injunctive relief in the form of medical treatment for his conditions and repair of the broken steps on which he fell. On Rodriguez's form complaint, when asked to describe his efforts to exhaust administrative remedies, Rodriguez indicated that he "wrote a BP9 to the administration of MCC. Step two was to the office of the F.B.O.P., step three was to the federal civil court." Compl. ¶ IV.E.3. Rodriguez also stated that "my lawyer also wrote the legal department of MC[C]." Id. ¶ IV.F. Bussanich moved for judgment on the pleadings on April 8, 2014, arguing that Rodriguez has failed to exhaust administrative remedies as required by the Prison Litigation Reform Act ("PLRA"). 42 U.S.C. § 1997e, and failed to adequately plead personal involvement, and that Bussanich is shielded from suit by the doctrine of qualified immunity.
B. Magistrate Judge Netburn's Report and Recommendation
In Magistrate Judge Netburn's R & R, she found that (1) failure to exhaust was not apparent from the face of the complaint; (2) Rodriguez had adequately pled that Bussanich was deliberately indifferent to his serious medical needs; and (3) Rodriguez had sufficiently alleged Bussanich's personal involvement. R & R at 7-21. In addition, Magistrate Judge Netburn found that a determination of qualified immunity was premature because "the facts supporting the defense do not appear on the face of the complaint.'" R & R at 22 (quoting McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004)). Magistrate Judge Netburn also declined to convert Bussanich's motion into a motion for summary judgment by considering documents outside of the pleadings submitted by Bussanich to show Rodriguez's failure to exhaust. R & Rat 11-13.
With respect to the finding on failure to exhaust, Magistrate Judge Netburn examined Rodriguez's complaint and determined that Rodriguez "has not pled that he did not exhaust; and at this stage in the litigation, he does not need to demonstrate that he did." R & R at 10. Magistrate Judge Netburn rejected Bussanich's argument that Rodriguez's complaint made clear that he did not pursue relief beyond the initial stage of informal resolution for two of his grievances, and that he did not pursue relief beyond the second stage for the remaining grievances. Id. at 9-10. Magistrate Judge Netburn found that because "exhaustion is not an affirmative pleading requirement, ... Rodriguez cannot be penalized for what he does not say in his pleading about his efforts to exhaust." Id. at 10.
Magistrate Judge Netburn also recommended prohibiting limited discovery on the issue of exhaustion because "such a measure would not serve any desirable judicial end." R & R at 12. The R & R found that bifurcating discovery in such a manner would unnecessarily complicate and delay proceedings and that full fact discovery would not be so extensive as to hinder timely resolution of the action. Id. at 13.
C. Bussanich's Objections
Bussanich objects to Magistrate Judge Netburn's finding that Rodriguez's complaint did not demonstrate failure to exhaust on its face. Objections at 2. Bussanich argues that the complaint clearly shows a failure to exhaust administrative remedies. Id. at 6-8. Bussanich describes Rodriguez's claims in his complaint regarding his efforts to exhaust, and argues that "[these allegations make clear that Plaintiff never completed the fourth step of the administrative process-an appeal to the office of General Counsel-and therefore failed to exhaust available administrative remedies." Id. at 7.
Bussanich argues that should the Court find that Rodriguez's failure to exhaust is not clear from the face of the complaint, the Court should permit limited discovery regarding exhaustion. Id. at 8. Bussanich asserts that discovery solely with respect to exhaustion would be limited and ...