Savage v. Acquino et al, No. 6:2013cv06376 - Document 84 (W.D.N.Y. 2016)
Court Description: -CLERK TO FOLLOW UP- ORDER granting 64 Motion for Judgment on the Pleadings; granting 68 Motion for Judgment on the Pleadings; denying without prejudice to renew as a Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure 77 Motion to Dismiss. A copy of this Order has been mailed to pro se plaintiff. Signed by Hon. Jonathan W. Feldman on 9/29/2016. (WGC)
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Savage v. Acquino et al Doc. 84 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK DAMONE TAREE SAVAGE, Plaintiff, DECISION & ORDER 13-CV-6376 v. OFC. MICHAEL ACQUINO, OFC. MARK HAMILTON, OFC. MARK WHITE, OFC. JEREMY CONNOLLY; MICHAEL REARDON, 1st Deputy Superintendent; DR. HIELINBURGER, Doctor of Erie County Medical Staff; and GUADALUPE STABLER, nurse, Defendants. PRELIMINARY STATEMENT Plaintiff Damone ("plaintiff") ,' Savage individual an previously detained at the Erie County Holding Center brings this ( "BPD") pro officers See 1983. se asserts: # Mark (2) a action Reardon his pursuant Amended to Department 42 Complaint, alleging violations of his U.S. C. § plaintiff Fourth Amendment and Jeremy Connolly, alleging Eighth Amendment rights; and cause of Mark of his against Guadalupe In Police cause of action against Officers Michael Acquino, Hamilton, violations officials 7. Buffalo a cause of action against Officers Michael Acquino and Mark Hamilton, rights; against ECHC and Docket ( 1) action ( "ECHC") , Dr. Stabler ("Reardon"), White, Edwin Heidelberger ("Stabler") , and ( 3) a ("Heidelberger") , Superintendent Nurse Michael alleging violations of his Eighth Amendment Dockets.Justia.com rights. Id. Pursuant to the provisions of 28 U.S.C. § 636(c), the parties have consented to the jurisdiction of this Court for all dispositive matters, including trial. See Docket # 46. Currently pending before the Court are Reardon's motion for judgment on the pleadings judgment on the pleadings motion to dismiss # 64) , (Docket (Docket (Docket # 77). # Stabler' s 68), and motion for Heidelberger's Because plaintiff asserts the same claim against all three defendants and because defendants raise similar arguments, simultaneously. and for the the Court will consider these motio.ns Based on a reasons review of the parties' discussed below, Reardon's submissions motion for judgment on the pleadings and Stabler's motion for judgment on the pleadings are granted. converted to a Heidelberger's motion to dismiss is for summary judgment and is denied without prejudice to renew. FACTUAL BACKGROUND The following is based solely on the allegations contained on the face of plaintiff's Amended Complaint. 1 1 Docket # 7. On The parties have submitted certain materials to the Court that contain factual matter outside the scope of the Amended Complaint. See Docket ## 64-75, 77, 80, 82. The Court has not considered these materials in its resolution of defendants' motions because, "when considering . a motion to dismiss a complaint for failure to state a claim on which relief can be granted, the district court is normally required to look only to the allegations on the face of the complaint." Roth v. 2 January 18, 2013, plaintiff criminal possession of a that the arrest assaulted him was and was firearm. unlawful, illegally course of the arrest. arrested Id. and BPD asserts that his left head, wrist, as well as As a result, legs, hips, and back. Following his arrest, other injuries BPD person officers during According to his to his eyes, face, Id. at 6, 17. plaintiff was transported Amended Complaint, plaintiff ECHC with: unspecified injuries to his eyes, left shoulder required stitches; back. Id. with Stabler, review in any experiencing a sling; she of [his] "head lacerations and bruising on his Plaintiff alleges face, on to ECHC, knees, look wounds," instead and was into "fine." at arrived at wrists legs, that hips, and initial meeting [his] telling Id. and head; his his that during his "refused. to trauma" the left shoulder, where he was examined by Stabler for intake processing. 17. for plaintiff claims to have suffered permanent injuries to his neck, and officers Plaintiff alleges at 8. searched Id. at 6. by complaints him that Id. He he or was further Jennings, 489 F.3d 499, 509 (2d Cir. 2007) ("[A] ruling on a motion to dismiss . . is not an occasion for the court to make findings of fact."). For purposes of this rule, material falling within the scope of the complaint covers "any document incorporated in it by reference, annexed to it as an exhibit, or integral to it because it relies heavily upon its terms and effect," id. (internal quotations and citations omitted), including "documents plaintiffs had either in their possession or had knowledge of and upon which they relied in bringing suit." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (quotations and citation omitted). 3 alleges that course of additional his the. Doctor doctor, York 2 June 28, Commission many multiple in of treat him over telling plaintiff the medication the "only needed." [he] that Id. he made "many" requests to see a times, and "the nurse," treatment," who "Deputy that he was "WAS February February raised those in requests and be 15, 15, 2013 2013 and grievance plaintiff's were referred claimed to be in original). that Below that, on Amended ignored. Id. H" at specifically requested in his grievance that he and not plaintiff issues that proper indicated Correction that he requested to be examined by "Dr. "receive (emphasis of plaintiff's the namely, Plaintiff wrote [him] to Id. issues C?mplaint - Id. ECHC, plaintiff claims, 2013. The 19. declined including through the filing of grievances with the New State mirror detention at could give Accordingly, nurses to unable "the to assist On the grievance form, Brown" and "Nurse scheduled to see 'doctor'" ECHC staff Debbie" informed the doctor later. and in large capital letters in quotations, NEVER CALLED TO SEE 2 DOCTOR". Id. him. Id. someone Plaintiff Plaintiff attached to his Amended Complaint six separate "sick call request" forms dated February 26, 2013; July 17, 2013; July 24, 2013; August 2, 2013; August 18, 2013: and November 3, 2013. Docket # 7 at 20-25. In the requests, plaintiff complained of "extreme headaches, 11 "numbness in [his] wrists, 11 and "constant pain." Id. He also reported blurred vision. Id. He made a request to see "Doctor H," but also noted in the forms that he was prescribed various medications and was examined by a neurologist. Id. 4 indicated that he did not accept the "informal his grievance and appealed the decision. 2013, plaintiff received a memorandum Id. resolution" of On February 2 O, formally denying his requests and barring further appeal from Sergeant A. Harris with the Erie County Sheriff's Office. 3 On April 4, with "the surgery 2013 and May 5, Doctor," but would who not Plaintiff claims that, Id. at 17-18. 2013, plaintiff alleges, informed receive him that he needed ECHC. Id. he met shoulder it while at at 17. on June 13, 2013, he met with Reardon to discuss his release so that he could have the necessary surgery. Id. According to plaintiff, have the shoulder surgery through on that promise. On claiming June that 28, he 2 013, was Reardon promised him that he would while at ECHC, but never followed Id. plaintiff being filed denied 3 his proper second medical grievance, treatment. 4 In full, the memorandum reads: "Mr. Savage, I cannot sustain your request for an examination by the doctor. Minimum standard 9 CRR-NY 7032.4(h) says that issues outside the authority of the chief administrative office are not grievable. The chief administrative officer cannot dictate who performs medical evaluations. Medical personnel make that determination. You may not appeal this issue to the chief administrative officer or the Citizen's Policy and Complaint Review Council." Docket# 7 at 18. 4 Plaintiff did not attach his second grievance to his Amended Complaint, but, since it is plainly referenced in his Amended Complaint and qualifies as a document that he "had either in [his] possession or had knowledge of and upon which [he] relied in bringing suit,'' Chambers, 282 F.3d at 153, the Court considers it a part of plaintiff's pleading for purposes of the instant ·motions to dismiss. See Ellison v. Evans, 2013 WL 5 # 66-7. Docket In that grievance, plaintiff noted that after filing three "sick slips" on June 2, June 15, and June 25, he had not been called for treatment. he needed surgery medication to neurologist medical for Id. plaintiff's duties, requested cope with his records surgery. and his to ECHC requests a staff allegations claim against Reardon, plaintiff Reardon, him ·filed Heidelberger, medical and be motion noted receive be given for on indicated that resolution of his grievance. 2013, he: access release the treatment form for grievance he agreed to his medical form scope of the the basis of that their informal plaintiff's and Heidelberger. first Complaint, violation of his suing Stabler, for denying Eighth protection against cruel and unusual punishment. current On July 22, and "Sheriff Timothy Howard" in to Id. Stabler, his stronger examined by a required action beyond the and plaintiff These that He also wrote that "non-stop pain"; headaches; make Id. 2013, Amendment Docket # 1 at 5863545, at *l n.5 (S.D.N.Y. Oct. 31, 2013) (considering grievances submitted by defendant in motion to dismiss "[bl ecause these documents [we] re either explicitly referred to or incorporated by reference in plaintiff's complaint . ") , aff'd sub nom., Fuller v. Evans, 586 F. App'x 825 (2d Cir. 2014), cert. denied, 135 S. Ct. 2807 (2015); see also, Sanchez v. Velez, 2009 WL 2252319, at *l n. l (S.D.N. Y. July 24, 2009) ("Because plaintiff's grievances are referenced in the complaint, the grievance documents are incorporated by reference and properly considered on a motion to dismiss." (citations omitted)). 6 7. The Judge, alia, Honorable Richard J. Arcara, United issued an Order on October 17, plaintiff's Stabler, claim for Reardon, and States permitting, 2013, insufficient medical Heidelberger to proceed On 5-6. November 8, 2013, plaintiff care and plaintiff an opportunity to amend his Complaint. at District inter against providing See Docket # 5 filed the current Amended Complaint, once again stating a cause of action against Stabler, and Reardon, Heidelberger for allegedly proper medical care while he was held at ECHC. For 1 7. relief, plaintiff requests five denying him Docket # 7 at million dollars, compensation for his medical bills from ECHC, and termination of "the Medical Staff" Geraci, Jr., and Reardon. Id. Chief United States District Judge, on April 25, 2014 their July 18, Answers allegations to 2014, the regarding medical needs issued an Order permitting plaintiff's claim against Stabler, Reardon, and Heidelberger to proceed. On The Honorable Frank P. defendants Amended Docket # 8. Stabler Complaint, deliberate and setting forth, and Reardon denying indifference among others, to filed plaintiff's his serious an affirmative defense that plaintiff failed to comply with the requirements of the . Prison Litigation Reform Act 18, 14 Amended at ' 18. Complaint ( "PLRA") . Docket ## 13 at ' Heidelberger filed his Answer to plaintiff's on July 30, 2014, also denying plaintiff's allegations that he was deliberately indifferent to plaintiff's 7 serious medical plaintiff need failed Docket # 15 at , to and raising comply with an the affirmative defense requirements of that the PLRA. of Civil 28. DISCUSSION Relying Rule 12(c) of the Federal Rules Reardon and Stabler5 how seek dismissal of the claim Procedure, against on them, arguing administrative that: remedies (1) plaintiff available to did not him instant action in accordance with the PLRA; and all bringing before exhaust the (2) plaintiff's Amended Complaint fails to state the elements of a claim against them for deliberate indifference to serious medical needs. 6 Docket ## 67 at 5-24, 71 at 5-24. See Heidelberger similarly seeks dismissal of the claim against him pursuant to Rule 12(c) of the Federal Rules Reardon and asserting Civil Stabler that: deliberate received of ( 1) regarding to medical adopting exhaustion plaintiff has indifference adequate Procedure, failed medical care while the under to need; arguments the state a and detained (2) at PLRA df and claim for plaintiff ECHC. See Docket# 77-17 at 1-8. 5 Though Reardon and Stabler filed separate motions, they are nearly identical in form and substance. 6 Defendants Reardon and Stabler additionally move for an Order from the Court staying this action pending resolution of the instant motions. See Docket ## 67 at 24-25, 71 at 24-25. On November 16, 2015, this Court issued an Order granting that request. See Docket # 78. 8 I. Legal Standard Applicable to Rule 12(c) Motions "In deciding a standard as that Rule 12 (c) applicable Sheppard v. Beerman, motion, to a [courts] apply the same motion under 18 F.3d 147, 150 12 (b) ( 6) . " 1994). (2d Cir. Rule "A motion to dismiss under Federal Rule of Civil Procedure 12(b) (6) the legal sufficiency of the party's claim of relief." Auto Zone, other Inc., words, 12(b) (6)], 800 F. "[t]o Supp. survive 2d 473, a 475 motion (W.D.N.Y. to dismiss York, Atlantic Zucco v. 2011). [under In Rule a complaint must plead 'enough facts to state a claim to relief that is plausible on its face.'" New tests 514 Corp. F.3d v. 184, 188 Twombly, plausibility exists Ruotolo v. (2d Cir. 2008) 550 U.S. 544, 570 "when the City of (quoting (2007)). plaintiff pleads Bell Facial factual content that allows the court to draw the reasonable inference that the defendant is Ashcroft, 589 F.3d 542, Iqbal, 556 U.S. In the 662, determining warranted, in liable for 663 the 546 misconduct (2d Cir. 2009) Turkmen v. (quoting Ashcroft v. (2009)). whether dismissal "a district court must complaint or alleged." in documents limit of the itself attached to complaint to facts the Time Warner Inc., 937 F.2d 767, 773 stated complaint exhibits or incorporated in the complaint by reference." v. is (2d Cir. 1991). as Kramer While "a court must accept the allegations contained in the complaint as true, and draw all reasonable inferences 9 in favor of the non- movant," Sheppard, 18 F.3d at 150, provide the grounds of his entitlement to relief than labels and conclusions, elements of a at 555. "a plaintiff's obligation to and a formulaic recitation of the cause of action will not do." "[A] t a bare minimum, requires more Twombly, 550 U.S. the operative standard requires the plaintiff to provide the grounds upon which his claim rests through factual relief above F.3d 50, 56 This allegations the sufficient speculative level." (2d Cir. 2008) standard litigants, but, to raise a Goldstein v. right Pataki, applies to claims brought "[alt the same time, pleaded, must 516 (quotations and citations omitted). a by pro be held to less stringent than formal pleadings drafted by lawyers." Zucco, however standards 800 F. (quoting Boykin v. Cir. 2008)). "Nevertheless, all pleadings, pro se or otherwise, must contain enough factual fair notice what which it rests." allegations the Id. claim 521 F. 3d 202, Supp. 2d at 4 75- 76 of KeyCorp, se 'document filed pro se is to be liberally construed and a pro se complaint, inartfully to to is 'give and 214 ( 2d the defendant the grounds upon (quoting Boykin, 521 F.3d at 214). II. Legal Standard Applicable to Eighth Amendment Claims of Deliberate Indifference Standard Plaintiff violated his alleges Eighth that Reardon, Amendment Stabler, rights 10 by and denying Heidelberger him proper medical care while he was detained at ECHC. Amendment, which prohibits the infliction of cruel and unusual punishment, . the inmates are protected from punishments that unnecessary and wanton Coughlin, Georgia, pretrial 37 F.3d 63, detainees that 2003) infliction of pain."· 66 428 U.S. 153, Fourteenth Amendment, (2d Cir. Under the Eighth (2d 173 Cir. (1976)). held in see Tramell v. today's 'broad Hathaway v. (quoting Gregg facilities Keane, 338 F.3d 155, and applies and through U.S. 97, 102 (1976)). 685 (1978) the 161 to any actions idealistic concepts of Hutto v. dignity, civilized standards, humanity, and decency.'" Finney, 437 U.S. 678, v. This protection extends to state (citation omitted), "transgress 1994) (quoting Estelle v. Gamble, 429 Inadequate medical treatment qualifies as cruel and unusual punishment proscribed by the Eighth Amendment when an inmate can prove "that defendants' amounted need. '" to 'deliberate indifference actions or omissions to a serious Evan v. Manos, 336 F. Supp. 2d 255, 260 medical (W.D.N.Y. 2004) (quoting Estelle, 429 U.S. at 106). "The deliberate objective and a indifference standard subjective prong." embodies Hathaway, 37 both F.3d at an 66. Objectively, an inmate must demonstrate "a deprivation that is . sufficiently serious civilized measure Coughlin, of [such] life's 249 F.3d 156, 164 that he was denied the minimal necessities (2d Cir. 11 2001) " Gaston v. (internal quotation and citation omitted). Whether the d7privation of medical care is objectively serious requires inquiries into: prisoner was ( 2) actually deprived of ( 1) "whether the adequate medical care," and "whether the inadequacy of the medical care is sufficiently Salahuddin v. serious." 2006) . The prison first officials Goard, inquiry acted 467 F.3d 263, entails an reasonably in 279-80 assessment response (2d Cir. of whether a medical to condition; the second requires courts to examine the harm caused by any inadequate action based on, seriousness of the medical condition. among other things, the There is no "precise Id. metric to guide a court in its estimation of the seriousness of a prisoner's medical condition," but Circuit consider a number of factors. 158, for 162 (2d Cir. constitutional courts in the Brock v. Wright, Second 315 F.3d Medical need is sufficiently serious 2003). purposes when, for example, "it presents a condition of urgency that may result in degeneration or extreme pain. ' 1 See, e.g., Moran v. Livingston, 155 F. Supp. 3d 278, 288 (W.D.N.Y. 2016). While an inmate is not required "to demonstrate that he or she experiences pain that is at the limit of human ability to bear," Brock, 315 F.3d unsupported "assertion of pain sensation alone amount Evan, to a 336 F. omitted). serious medical Supp. Other 2d at factors 260 at 163, an does not need under the Eighth Amendment." (iµternal indicative 12 of quotation and citation serious medical need include "the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the an presence of a individual's medical condition that daily activities; and substantial pain." Chance v. (2d Cir. 1998) The standard or the significantly affects existence Armstrong, of 143 F. 3d 698, subjective requires prong that of the the charged (citing Seiter, Wilson v. 501 indifference deliberate official "act [ed] Hathaway, state of mind." U.S. 37 with (1991)) . 298 294' than conduct undertaken for (citation omitted); complaint that a medical F. medical 3d at establish condition 2 88 a does the not state at 106 ("[A] in diagnosing or a valid Eighth Amendment.") ; constitutional "know[] inmate or of from which the risk of violation.") . and disregard[] safety; facts serious 429 U.S. claim Moran, of 155 ("More than medical. malpractice is required official must health see also Estelle, under but less the very purpose of causing harm." physician has been negligent mistreatment Supp. to a a F.3d at 66 "Deliberate indifference requires more than negligence, treating 702 (internal quotation and citation omitted) sufficiently culpable Id. chronic the official The an excessive must both be inference could be drawn that harm exists, Brennan, and he must 825, also inference." Farmer v. other words, the official must have acted with the 13 511 U.S. charged 837 risk to aware of substantial draw the (1994). In "equivalent of criminal recklessness." (citation omitted); 108, 110 155 plaintiff F. Supp. Unger, see also Beaman v. (W.D.N.Y. 2011) therefore, Moran, 838 3d F. at 288 Supp. 2d ("To establish deliberate indifference, must prove that the defendants had a culpable state of mind and intended wantonly to inflict pain." (citations omitted)). The official's behavior should be "repugnant to the conscience of mankind or incompatible with the evolving standards of decency that mark the progress of maturing society. Evan, /1 quotations 336 F. Supp. omitted) . treatment," on the 2d at 261 "[M]ere other constitutional claim. (internal citations and disagreement hand, falls over short of the proper creating a See, e.g., Chance, 143 F.3d at 703. III. Legal Standard Applicable to Claims of Failure to Exhaust Administrative Remedies under the PLRA Relying on the plaintiff has available PLRA, failed to him and, must be dismissed .. at 1. to defendants exhaus.t thus, argue the first contend administrative that his Amended that remedies Complaint See Docket ## 67 at 5-16, 71 at 5-17, 77-17 The PLRA provides, in pertinent part, that " [n] o action shall be brought with respect to prison conditions under section 1983 of this confined until in such title, any or jail, any other prison, administrative or Federal other remedies 14 as law, by a prisoner correctional facility are available are exhausted." 42 instructed U.S.C. that "the 1997e(a). § PLRA' s exhaustion all inmate suits about prison life, circumstances excessive U.S. force 516, 4923586, "to or or 532 some see (W.D.N.Y. Sept. administrative requirement and wrong." also Supreme Court has applies to whether they involve general episodes, other (2002); at *7 promote particular The whether they Porter v. allege Nussle, Collins 30, v. 2014). Passed in an effort redress, Gruen, 534 filter out 2014 WL groundless claims, and foster better prepared litigation of claims aired in court," id. the type at of 528, the facility PLRA should be applied in which [an inmate "regardless of is] imprisoned." Ruggiero v. County of Orange, 467 F.3d 170, 175 (2d Cir. 2006). Under "utilize the the PLRA' s exhaustion available requirement, grievance an procedures, inmate must regardless of whether the relief sought is offered through those procedures." Coll.ins, case 2014 WL 4923586, in federal at *7. court, an Accordingly, inmate before bringing a "must complete the administrative review process in accordance with the applicable procedural rules by the 680 the rules that are defined not by the PLRA, prison grievance F.3d exist - 234, that PLRA's 238 relieve (2d an exhaustion process Cir. itself." 2012) inmate of No Johnson v. special an inmate's exhaust the available administrative remedies 15 Killian, circumstances their obligation to adhere requirement; but failure to to is only excusable where the remedies are, Correction Officer in fact, Priatno, unavailable. 829 F.3d 118, See Williams v. 123 (2d Cir., 2016) (noting that the Supreme Court's decision in Ross v. 136 S. U.S. Ct. 1850 special-circumstances exhaust under the were "three are an a consistently inmates. that it Williams, omitted). simple unwilling Second, becomes, an the failure exception the aggrieved inmate") . of circumstances remedy dead to Ross, may end provide administrative practically 829 F.3d at 123-24 "Third, inmate's 136 be which any officers relief an is not at 1859. when it unable or to aggrieved be so opaque incapable of use." scheme speaking, ct. unavailable with issue Generally, in s. to remedies although officially on the books, administrative as an whether administrative use to obtain relief." 7 capable of operates to for "fram [ed] of kinds administrative remedy, "First, and context actually available there abrogated the Second Circuit's exception PLRA entirely within the (2016) Blake, might (internal quotations and citations an administrative remedy may be unavailable when prison administrators thwart inmates from taking advantage of a grievance process or intimidation." through machination, misrepresentation, Id. 7 As explained by the Second Circuit in Williams, the list of circumstances where administrative remedies are effectively unavailable provided by the Supreme Court in Ross is not exhaustive. 829 F.3d at 123 n.2. 16 IV. Analysis Exhaustion of standard Administrative set forth circumstances he above, is the Remedies: PLRA alleging a Based on the applies series to of plaintiff's constitutional violations that occurred while he was housed at ECHC, jail facility the books." that Ross, of the motions of exhaustion Complaint and had an administrative remedy 136 S. Ct. at 1859. filed by the are directed Plaintiff's the statements exhaust his administrative remedies, such motions under Rule 12 (b) (6). " 8 *7. Accordingly, as a Moreover, allegations county "[b]ecause all in that to the issue the he Amended did not the Court will consider all Collins, preliminary 8 therein a "officially on [d] efendants relative to legal 2014 WL 4923586, at matter, the Court must While an inmate is not required to specially plead exhaustion, "a district court still may dismiss a complaint for failure to exhaust administrative remedies if it is clear on the face of the complaint that the plaintiff did not satisfy the PLRA exhaustion requirement." Williams, 829 F.3d at 122 (2d Cir. July 12, 2016) (citing Jones v. Block, 549 U.S. 199, 215-16 (2007)); see also Gomez v. Westchester County, 2015 WL 1054902, at *5 (S.D.N.Y. Mar. 10, 2015) ("The Court may dismiss a complaint under Rule 12 (b) ( 6) for failure to exhaust if nonexhaustion is clear from the face of the complaint." (citing Kasiem v. Swift, 756 F. Supp. 2d 570, 574 (S.D.N.Y. 2010))); McCoy v. Goord, 255 F. Supp. 2d 233, 249 (S.D.N.Y. 2003) ("If failure to exhaust is apparent from the face of the complaint, a Rule 12(b)(6) motion is the proper vehicle."). Here, plaintiff's Amended Complaint plainly states that he did not appeal both of his grievances, meaning the failure to exhaust defense is properly adjudicated through the instant motions. 17 determine whether plaintiff satisfied the PLRA's exhaustion requirement prior to filing his Amended Complaint. At ECHC, program administered ( "ECSO" ) he program first by # Docket grievance when inmate complaints are resolved through a grievance 66 the at through entered 3. 21-22. instructed staff to will to "Inmate Request person or office process. undue delay." Housing to Area inmate received the program or written and system, inmates are which ECSO complaints, immediately. If Id. the it should be recorded on "forwarded to the appropriate review and consideration formal fill procedure, out Officer will without the a an inmate with a submit five Id. receive Coordinator within five dissatisfied with and within rise to the complaint. the to he Id. Under the instructed that the see also Docket # Id.; informal resolve Slip" for Office notified of According grievanc1= is not immediately resolved, an was Handbook Id. the verbal attempt Sheriff's an inmate can resolve issues through Under make Inmate ECHC. either an informal or formal at County Plaintiff an desc.ribed in the handbook, 66-3 Erie a days grievance of the complaint is form incident to the giving at 22. Once a grievance is filed, written answer business days. answer provided, from the Grievance Id. If the inmate is they are instructed to appeal to the Superintendent within two business days, 18 and the Superintendent will review the grievance answer within five business days. Superintendent's within Id. three response, business Thereafter, the council will make a the days inmate the ·Citizens' 28, response to plaintiff's # Docket that his he 17-19. Indeed, establishes that, administrative from the ESCO did not a and of to appeal Corrections. Complaint review scheme the decisions reveal February 15, indicates issued in attache.d documents however, to that plaintiff 2013 grievance. Id. of plaintiff's Amended Complaint the remedies, informing him reference to Plaintiff The following for inmate 2013 and one filed on 17. Id. reading after at appeal Complaint, his grievance any further. therefore, written Id. 7 grievances. Amended a determination and deliver it to the appealed the decision on his at Commission one filed on February 15, 2013. specifically instructed plaintiff's Amended Complaint makes two grievances June is Policy within forty-five business days. As noted, issue If dissatisfied with the Id. to and that steps he received he was Id. at 18. outlined a in the memorandum barred from appealing It appears to the Court, that plaintiff exhausted the available administrative remedies outlined in the ESCO Inmate Handbook for the complaints in his grievance filed on February 15, 2013. Plaintiff's different story. June 28, 2013 grievance, On the grievance 19 form, however, plaintiff presents a explicitly indicated that he "agree[d] [his] [g]rievance" Moreover, in to accept the informal resolution to without his response further ,appeal. to the instant Docket motions, # 66-7. plaintiff acknowledges that he did not appeal the decision on his June 28, 2013 grievance and indicates that at least some of the requests See Docket # 80 at 12. made in that grievance were satisfied. Even when "interpret [ing] [plaintiff's pro se Amended Complaint] to claims raise Fischer, the the 738 Court unaware strongest F.3d 509, is of unable to reasonably of his obligation to v. 2013) (citations omitted), infer that appeal language to follow his plaintiff June was The contains duty Hogan grievance before filing the instant suit in federal court. Complaint and suggests," 2013 plaintiff ability (2d Cir. it 28, Amended his 515 that explicitly the PLRA's informing exhaustion requirements and provide information related to his efforts exhaust the available administrative remedies. 9 He honored this obligation with 9 the to Docket # 7 at 4. grievance he filed on Under a section titled "Exhaustion of Administrative Remedies," the Amended Complaint states: "Note that according to 42 U.S. C. § 1997e(a), '[n]o actions shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prison [er] confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.' You must provide information about the extent of your efforts to grieve, appeal, or otherwise exhaust your administrative remedies, and you must attach copies of any decisions or other documents which indicate that you have exhausted your remedies for each claim you assert in this action." Docket # 7 at 4 (emphasis in original). 20 February 15, grievance. 2013, but, inexplicably, Taken together, did these facts not with his later fail to give rise to an inference that the administrative remedy available to plaintiff was "a relief simple was discern so or dead end," complicated navigate "thwart [ed] the "no o+ that process ordi;nary the machination, Ross, 136 S. Ct. ECHC that plaintiff failed to obtaining [could] administrators [the] grievance misrepresentation, at 1859. or Accordingly, respect to the issues raised in his June 28, find for prisoner from taking advantage of through intimidation." that that it," [plaintiff] process or exhaust with 2013 grievance, the I administrative remedies available to him before filing his Amended Complaint. The Court's inquiry, failure to does not end here. Pursuant of the Federal Rules of Civil Procedure, to Rule 8(c) a party's set forth pleadings constitutes from the case." (W.D.N.Y. Maritime Admin. v. (quoting Takos, 2002 U.S. WL For Continental Illinois Nat. 889 F.2d 1248, be defense raised in responsive "waiver of that defense and its exclusion 2002) exhaustion that must affirmative v. 4, Circuit, an Boston Oct. of Chicago, however, under in a 1253 the (2d Cir. PLRA is 31663510, and Haubert, 179 F.3d 19, defendants Reardon, Stabler, 28-29 of In the Second see (2d Cir. and Heidelberger did. 21 Behalf affirmative responsive pleading, Jenkins v. *3 Bank and Trust Co. 1989). an on at defense id. 1999)), (citing which See Docket ## 13 at 18, 14 at 18, 15 at 28. Since defendants did not waive their right to assert this defense, is barred from raising the contained in his June 28, deliberate evaluate basis); exhaustion under see also Gomez v. and the PLRA claim (instructing courts on a claim-by-claim 2015 WL 1054902, (reviewing exhaustion on a claim- grievance-by-grievance 4923586, at *10 (2007) Westchester County, at *6 (S.D.N.Y. Mar. 10, 2015) by-claim indifference 2013 grievance in the instant suit. See Jones v. Block, 549 U.S. 199, 223 to I find that plaintiff basis); Collins, 2014 WL (dismissing case where plaintiff failed to "file a grievance or an appeal with respect to either of his claims"). Moreover, raised in his because plaintiff February 15, 2013 only exhausted grievance, and the issues because that grievance makes no mention of plaintiff's current claims against defendants Reardon and Stabler, dismiss plaintiff's prejudice. Amended the Court has no choice but to Complaint against See Boston, 2002 WL 31663510, at *3 them without (noting that, in order to exhaust administrative remedies under the PLRA "as to the acts allegedly committed by" defendants, an inmate must file a grievance and appeal that grievance against each defendant) . Indeed, the the conversation between plaintiff and Reardon, which is sole giving incident rise to a alleged in claim against plaintiff's Reardon, after the February 15, 20_13 grievance. 22 Amended Complaint occurred four months See Docket # 7 at 17 ("I then spoke to Sup. surgery or relase said surgery Int. Reardon on June 13, [sic) he said he would see to while in facility I wrote 2013 about my [i)t that I had him a reminder"). Similarly, while plaintiff asserts in his Amended Complaint that Stabler denied entered ECHC, him appropriate his February 15, medical care when he first 2013 grievance makes no mention of Stabler or the adequacy of the medical care he received upon admission to ECHC. generous Id. at 19. In fact, of plaintiff's interpretation based on this Court's se pleading, Heidelberger 10 is the only one of the three defendants subject to plaintiff's deliberate exhausted grievance. seen by the Accordingly, filed medical indifference See id. 'Dr.. plaintiff's before the claim mentioned in his ("I have made many attempts to be of H' lawsuit exhaustion this against of facility Reardon available • and fl ) Stabler, administrative remedies, must be dismissed. Plaintiff's Remaining Eighth Amendment Claims for Deliberate Indifference to Medical Need: Based on the above, the plaintiff's claim of medical need is only remaining deliberate Heidelberger. defendant indifference subject to his to serious Additionally, because plaintiff failed to exhaust the administrative remedies available to him with respect to the 10 The Court infers that plaintiff was referring to Heidelberger when he requested to see "Dr. H" in his February 15, 2013 grievance. Docket # 7 at 19. 23 June 28, raised 2013 here grievance. grievance, are See Gomez, concludes that including his cavity, those the only issues contained in his 2015 WL 1054902, although November Gomez claim that February at exhausted regarding are *6 15, here. ' (citation 1 ("The Court thus other pain dental from an 2012, and is claims, exposed thus barred from asserting omitted)). To reiterate, that plaintiff's allegations that he made "many attempts" Heidelberger that 2013 he failed to exhaust any claim regarding dental care he received in August by properly he was Plaintiff's for severe improperly additional headaches denied and blurred treatment. complaints, includes to be seen vision, that but # Docket including it 19. 7 at Heidelberger denied him a necessary surgery while he was housed at ECHC, have not been properly adjudicated in exhausted the instant remaining task with respect therefore, claim for under the PLRA litigation. to the and. cannot The Court's be only claim against Heidelberger, is to determine whether he has sufficiently stated a deliberate indifference based on the allegations contained on the face of his Amended Complaint. In support Complaint, of his Heidelberger motion relies statements at the April 28, Court (see Docket # before his admission to dismiss on, plaintiff's inter alia, Amended plaintiff's 2015 Scheduling Conference with the 77-17 at 5); into ECHC plaintiff's medical treatment (see id.); 24 plaintiff's referral to an orthopedic surgeon at ECHC (see id. at 6); the results of plaintiff's visit to 7); physical plaintiff's examination by "the ECMC Orthopedic Clinic" neurologist a plaintiff's left shoulder orthopedic therapy surgeon, (see (see id. (see id.); Dr. Michael (see id. id.) ; at at plaintiff's an 7) ; x-ray of a report from plaintiff's Rauh, M.D., purportedly indicating that plaintiff did not need shoulder surgery (see id. at 8); and an affidavit from Heidelberger averring that he provided plaintiff with reasonably appropriate medical care (see Docket # 77-18). While these materials may be relevant to the adjudication of the merits of plaintiff's claim, the Court finds it improper dismiss. to consider them in the context of a motion to The Federal Rules of Civil Procedure make clear that this Court is barred from considering matters presented outside the pleadings on a motion to dismiss without converting that motion to one for summary judgment under Rule 56 and giving the opposing party notice of the conversion and a reasonable opportunity to submit the pertinent materials in response. Fed. R. 303, 307 Civ. P. 12(d); (2d Cir. 2009) see also Hernandez v .. Coffey, ("[A] See 582 F.3d district court acts properly in converting a motion for judgment on the pleadings into a motion for summary judgment when the motion presents matters outside the pleadings, but the rule requires that the court give sufficient notice to an opposing party and an opportunity for 25 that party to omitted)) . respond." Finding . (internal that quotations Heidelberger and presented citation materials outside the scope of plaintiff's Amended Complaint in support of his motion, and noting that, at this stage in the litigation and with few facts developed, it would be exceedingly difficult for this Court to determine the seriousness of plaintiff's injury or his deprivation of medical care, see Rosales v. Fischer, 2009 WL 928260, at *12 construction whether (S.D.N.Y. afforded an alleged Mar. pro injury 31, se 2009) ("[G]iven the complaints, is sufficiently liberal determination serious is of often premature at the pleading stage and better suited to resolution on summary judgment . " ) , Heidelberger's judgment. motion to this dismiss Court to a hereby motion converts for summary See Fed. R. Civ. P. 12(d) As stated above, when a court converts a motion to dismiss to a motion for summary judgment, "the rule requires that the court an give sufficient· notice to oppos.ing opportunity for that party to respond." 307 Hernandez, (internal quotation and citation omitted) . a pro se party, to offer and an 582 F.3d at "In the case of 'notice is particularly important' because the pro se litigant failure party 'may be unaware of the consequences of his evidence bearing on triable issues. '" (quoting Beacon Enters., Inc. v. Menzies, Cir. 1983) ) . in Irby v. New York City Transit Auth., Relatedly, 26 715 F.2d 757, 767 Id. (2d 262 F.3d 412 (2d Cir. 2001), the Second Circuit recognized •that district courts and represented litigants who move for summary judgment against pro se parties must provide any pro se party with notice of the requirements of Rule 56 of the Federal Rules of Civil Procedure and 'the consequences of noncompliance' the rules." 2519968, at Malcolm v. Honeoye Falls-Lima Educ. Ass'n, at *l 413). (W.D.N.Y. Mar. 31, 2014) (citing Irby, Since Irby, · this district has with 2014 WL 262 F.3d implemented mandatory summary judgment notice requirements, adopted in our Local Rules of Civil Procedure. See W.D.N.Y. Loe. R. Civ. P. 56(b). While the Court may excuse the failure Notice to a establishes motion that requirements of for the summary pro Rule se 56, see showing has been made here. opposition establishes that judgment litigant Irby, if to attach an Irby the clearly 262 moving party understood F. 3d at 414, no the such A review of plaintiff's response in he did not fully understand the challenges raised in Heidelberger's motion to dismiss, let alone that the judgment. motion might See Docket converted motion for be # converted 80. into one Accordingly, summary judgment (Docket # for summary Heidelberger's 77) is denied without prejudice to renew upon the filing of a revised version of his motion papers addressing the surviving issues raised in plaintiff's February 15, 2013 exhausted grievance. 27 CONCLUSION For the reasons (Docket # 64) the pleadings the pleadings as a # (Docket Reardon' s motion for are 68) converted motion and granted, defendant findings in are the for reminded instant on Heidelberger's is denied without prejudice to summary judgment that, Decision pursuant and Order, pursuant to Both plaintiff Rule 56 of the Federal Rules of Civil Procedure. and judgment and Stabler's motion for judgment on (Docket # 77) motion to dismiss renew stated, to the the only Court's issues remaining for this Court to resolve with respect to plaintiff's claim against Heidelberger for deliberate indifference to serious medical need are those raised in his February 15, exhausted grievance. By failing his 2013 to exhaust the administrative remedies available to him with respect to the issues raised in his June 28, 2013 grievance, to adjudicate them here. to this Decision plaintiff has Additionally, and Order a copy of forfeited his right the Court is attaching the court-required Irby Notice, and defendant is instructed to attach same to his moving papers. Plaintiff is directed to respond to the revised summary judgment motion papers. Defendant shall have fourteen thirty further discovery summary judgment motion. unable to present shall facts (30) days occur after pending service (14) a 28 to the justify believe his motion to reply. determination Should plaintiff needed days of of No the that he is opposition to summary judgment, he must file an affidavit or declaration pursuant to Rule 56(d) of the Federal Rules of Civil Procedure. SO ORDERED. Judge Dated: September 29, 2016 Rochester, New York 29 PRO SE NOTICE Plaintiff is hereby advised that the defendant has asked the Co.urt to decide this case without a trial, based on written materials, including affidavits, submitted in support of the motion. THE CLAIMS PLAINTIFF ASSERTS IN HIS/HER COMPLAINT MAY BE DISMISSED WITHOUT A TRIAL IF HE/SHE DOES NOT RESPOND TO THIS MOTION by filing his/her own sworn affidavits or other papers as required by Rule 56 of the Local Rules of Civil Procedure. An affidavit is a sworn statement of fact based on personal knowledge that would be admissible in evidence at trial. In short, Rule 56 provides that plaintiff may NOT oppose summary judgment simply by relying upon the allegations in the complaint. Rather, plaintiff must submit evidence, such as witness statements or documents, countering the facts asserted by the defendant and raising issues of fact for trial. Any witness statements, which may include plaintiff's own statements, must be in the form of affidavits. Plaintiff may file and serve affidavits that were prepared specifically in response to defendant's motion for summary judgment. Any issue of fact that plaintiff wishes to raise in opposition to the motion for summary judgment must be supported by affidavits or by other documentary evidence contradicting the facts asserted by defendant. Plaintiff is required to file and serve the following papers in opposition to defendant's motion: ( 1) a memorandum of law containing relevant factual and legal argument; (2) one or more affidavits in opposition to the motion; and (3) a response to each numbered paragraph in the moving party's statement of material facts not is dispute, in correspondingly numbered paragraphs and, if necessary, additional paragraphs containing a short and concise statement of additional material facts as to which.it is contended there exists a genuine issue to be tried, followed by citation to admissible evidence. Each numbered paragraph in the moving party's statement of material facts will be deemed admitted for purposes of the motion unless it is specifically controverted by a correspondingly numbered paragraph in the opposing statement. In the absence of such a statement by plaintiff, all material facts set forth in defendant's statement of material facts not in dispute will be deemed admitted. Plaintiff must serve his/her opposition to defendant's motion no later than the date they are due as provided in Rule 7(b) of the Local Rules of Civil Procedure for the Western District of New York, or in accordance with the Court's briefing schedule. If plaintiff does not· respond to the motion for summary judgment on time with affidavits or documentary evidence contradicting the facts asserted by defendant, the Court may accept defendant's factual assertions as true. Judgment may then be entered in defendant's favor without a trial. A copy of the Local Rules to which reference has been made may be obtained from the Clerk's Office. If plaintiff has any questions, he/she may contact the Pro Se Office. 30
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