Summary
granting motion to dismiss on non-exhaustion grounds where the plaintiff failed to file a grievance at any time and argued that "he did not know his arm was broken [on December 29, 1998] until he was treated on February 17, 1999, and that he, therefore, was not aware that he had been denied proper medical care at any time prior to February 17, 1999"
Summary of this case from Tomony v. Cnty. of SuffolkOpinion
No. 99 Civ. 3957 (LTS)(DCF)
September 20, 2002
Sean Pritchett, Plaintiff Pro Se
Eliot Spitzer, Attorney General of the State of New York, By: John Knudsen, Esq, Assistant Attorney General, New York, New York, Attorneys for Defendant.
OPINION AND ORDER
On June 1, 1999, Plaintiff commenced this 42 U.S.C. § 1983 action, alleging deliberate indifference to his medical and safety needs in violation of the Eighth Amendment. Plaintiff alleges that Dr. Norman Selwin ("Defendant") failed to order an x-ray or consult an orthopedic specialist about Plaintiff's injured arm, and that Defendant delayed access to proper medical care for six weeks. The action was transferred from the Honorable Shira A. Scheindlin to the undersigned on September 6, 2000. On May 10, 2001, the Court denied Plaintiff's motion for default judgment and motion for summary judgment, and granted his motion to amend the complaint. Now pending before the Court is Defendant's motion for summary judgment brought pursuant to Federal Rule of Civil Procedure 56.
Judge Scheindlin issued a decision on January 3, 2000, granting in part and denying in part a motion to dismiss the Complaint, leaving one defendant, Dr. Norman Selwin, remaining in the case. See Pritchett v. Artuz, No. 99 Civ. 3957 (SAS), 2000 WL 4157 (S.D.N.Y. Jan 3, 2000).
The Court has considered thoroughly all submissions and arguments related to this motion. For the following reasons, Defendant's motion for summary judgment is granted.
FACTS
The following material facts are undisputed, except to the extent specifically characterized below as allegations. Plaintiff is a disabled inmate of the New York State Department of Correctional Services ("DOCS") and is currently incarcerated at Shawangunk Correctional Facility. (Compl. at 3; Pl's Aff. at 1.) On December 29, 1998, while housed in the Unit for the Physically Disabled ("UPD") at Green Haven Correctional Facility ("GHCF"), Plaintiff was injured in an altercation with another inmate and was brought to the medial unit of GHCF. Plaintiff was treated by GHCF's medical staff and then was sent to the emergency room of Vassar Brothers Hospital, where Physician's Assistant K. Heitzman ("Heitzman") treated Plaintiff and took x-rays of his arm on December 30, 1998. (Id. at 4; Def.'s Mem. Supp. Summ. J. ("Def.'s Br.") at 3-4.) Heitzman stated that he could not rule out the possibility that Plaintiff's arm had been fractured because there was a metal rod in Plaintiffs left arm. (Def.'s Br. at 4.) Heitzman recommended that the splint be removed daily to change the dressing and to follow up in a week with an orthopedist. (Pl.'s Mem. Opp'n Summ. J ("Pl.'s Br.") at 3.) On December 30, 1998, Plaintiff was returned to his cell in the GHCF's UPD. (Pl.'s Br. at 3; Def.'s Br. at 4.) That same day, Plaintiff was involved in another altercation with another inmate (Compl. at 4) and was returned to the infirmary, where he was seen by Defendant (Pl.'s Br. at 3).
A metal rod had been implanted in Plaintiff's arm in December 1995.
Plaintiff alleges that he complained to a nurse on a daily basis about pain in his left arm and made the same complaint directly to Defendant, but Defendant ignored his complaints for six weeks. (Pritchett Aff. ¶ 10.) Plaintiff alleges that Defendant mis-diagnosed Plaintiff's x-ray, failing to note that there was a fracture in Plaintiff's arm. Pl.'s Br. at 4.) Plaintiff also contends that Defendant "refused to secure a[n] Orthopedic Specialist." (Id. at 7.) Plaintiff further alleges that no action was taken in response to his complaints until another physician, Dr. Schwartz, examined and conducted surgery on Plaintiff's arm on February 18, 1999. (Compl. at 5.)
At no time did Plaintiff file a grievance through the prison's administrative system concerning his complaint of lack of proper medical treatment.
DISCUSSION
Summary Judgment
Summary judgment "shall be rendered forthwith if the pleadings, depositions . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A "moving party is entitled to judgment as a matter of law [if] the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof."Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks and citations omitted). In deciding a summary judgment motion, a court should not resolve disputed issues of fact; rather, it simply must decide whether there is any genuine issue to be tried. Gallo v. Prudential Residential Services, Ltd., 22 F.3d 1219, 1224 (2d Cir. 1994); Eastman Mach. Co. v. United States, 841 F.2d 469, 473 (2d Cir. 1988). A disputed fact is material only if it might affect the outcome of the suit under the governing law. A genuine factual issue exists if there is sufficient evidence favoring the nonmovant such that a reasonable jury could return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-249 (1986).
Exhaustion of Administrative Remedies
The Prison Litigation Reform Act of 1995 (the "PLRA") provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any Federal law, by a prisoner confined in any jail, prison, or correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C.A. § 1997e(a) (West 1994 Supp. 2002). In Nussle v. Porter, 122 S.Ct. 983 (2002), the Supreme Court held that "[section] 1997e(a)'s exhaustion requirement applies to all prisoners seeking redress for prison circumstances or occurrences." 122 S.Ct. at 986. "All `available remedies must now be exhausted; those remedies need not meet federal standards, nor must they be `plain, speedy, and effective.' Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit." Id. at 988 (citing Booth v. Churner, 532 U.S. 731, 739-41 (2001)). The Second Circuit has held that prisoner complaints about medical treatment concern prison circumstances and, therefore, are subject to the exhaustion requirement. See Neal v. Goord, 267 F.3d 116, 119-20 (2001) (prisoner's section 1983 claim for medical indifference barred for failure to exhaust administrative remedies);Martinez v. Williams, 186 F. Supp.2d 353, 357 (S.D.N.Y. 2002) (prisoner's section 1983 claim alleging deliberate indifference to medical needs barred under section 1997e(a) for failure to exhaust administrative remedies).
Plaintiff argues that he was unable to file a grievance prior to February 1999 because he "was in too much pain . . . with all his many injuries" suffered in the altercations on December 29 and 30, 1998. (Pl's Br. at 6, 8; see Pl's Aff. ¶ 36.) Defendant notes, however, that Plaintiff was able to file a grievance concerning another issue on February 4, 1999, despite his pain. Plaintiff further argues that he did not know his arm was broken until he was treated on February 17, 1999, and that he, therefore, was not aware that he had been denied proper medical care at any time prior to February 17, 1999. (Pl.'s Surreply at 2.) Plaintiff contends further that he "had no reason to file a grievance in order to make . . . Dr. Selwin satisfy [his] medical needs" after he underwent an operation of his arm on February 18, 1999. (Pl.s' Surreply at 2-3.) Plaintiff's argument fails to recognize, however, that exhaustion of the administrative grievance process is a prerequisite to all suits regarding prison conditions, whether or not the situation complained of has been remedied and whether or not the relief sought is limited to damages. See Nussle, 122 S.Ct. at 988 ("Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit.").
Plaintiff filed a grievance regarding a policy of hiring health assistants and improving security for disabled prisoners; a claim concerning the same was raised in this case but dismissed by Judge Scheindlin. See Pritchett v. Artuz, No. 99 civ. 3957 (SAS), 2000 WL 4157 (S.D.N.Y. 2000).
Because Plaintiff has failed to comply with the PLRA's exhaustion requirement, his complaint must be dismissed.
CONCLUSION
For the reasons stated above, the Court finds that Defendant is entitled to summary judgment dismissing the complaint, without prejudice to the commencement of another lawsuit following the exhaustion of administrative remedies. The complaint is, accordingly, dismissed and the case shall be closed.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962).