Boomer v. Deperio

• Decision Date: 23 December 2005
• Docket Number: No. 03-CV-6348L.,03-CV-6348L.
• Citation: 405 F.Supp.2d 259
• Parties: Solomon BOOMER, Plaintiff, v. Jose M. DEPERIO, et al., Defendants.
• Court: U.S. District Court — Western District of New York

Page 259

405 F.Supp.2d 259

Solomon BOOMER, Plaintiff, v. Jose M. DEPERIO, et al., Defendants.

No. 03-CV-6348L.

United States District Court, W.D. New York.

December 23, 2005.

Solomon Boomer, Attica, NY, pro se.

Gary M. Levine, New York State Office of Atty. Gen., Rochester, NY, for Defendants.

DECISION AND ORDER

LARIMER, District Judge.

Plaintiff, Solomon Boomer, appearing pro se, commenced this action under 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), alleges that defendants, all of whom at all relevant times were physicians employed by DOCS, violated his constitutional rights in connection with his treatment for diabetes. Defendants have moved for summary judgment. The motion is granted and the complaint is dismissed.

BACKGROUND

The complaint alleges that plaintiff suffers from diabetes, and that beginning in July 2002, while plaintiff was confined at the Attica Correctional Facility ("Attica"), he was treated for that condition by defendant Stephen Laskowski, M.D. The gist of plaintiff's claim against Dr. Laskowski is that Laskowski failed to prescribe "rainbow coverage," which plaintiff described at his deposition as "on-the-spot treatment" based on his blood sugar readings. Dkt. # 38 at 44. While the nature of "rainbow coverage" (or of plaintiff's conception of such treatment) is not entirely clear from the record, plaintiff appears to allege that Laskowski prescribed plaintiff certain dosages of insulin, which were to remain the same over several months at a time. Plaintiff contends that those prescriptions did not take into account short-term fluctuations in plaintiff's blood sugar readings, with the result that plaintiff would be given dosages of insulin that were either higher or lower than what he actually needed.

Plaintiff has also sued Drs. Robert Takos and Jose DePerio, whom he describes as the "head doctor[s]" at Attica during plaintiff's treatment by Dr. Laskowski, Dkt. # 38 at 53, and Dr. Lester N. Wright, the DOCS Associate Commissioner of Health Services. The essence of plaintiff's claims against these defendants is that he complained to them about what plaintiff perceived as his inadequate treatment by Dr. Laskowski, and that they ignored his complaints. Dkt. # 38 at 53-54.

DISCUSSION

I. Failure to Exhaust Administrative Remedies as to Takos and Wright

Defendants contend that plaintiff has failed to exhaust his administrative remedies with defendants Takos and Wright, and that his claims against those two defendants must therefore be dismissed. Defendants rely on the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), which provides in part 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."

New York State regulations provide for a three-step administrative review process of prisoner grievances. See7 N.Y.C.R.R. § 701.7. First, "an inmate must submit a complaint to the Grievance Clerk within 14 calendar days of an alleged occurrence ...." 7 N.Y.C.R.R. § 701.7(a)(1). The grievance is then submitted to the inmate grievance resolution committee ("IGRC") for investigation and review.

If the IGRC denies the grievance, the inmate may appeal to the superintendent of the facility "by filing an appeal with the IGP [Inmate Grievance Program] clerk." 7 N.Y.C.R.R. § 701.7(b)(1). After the superintendent issues his decision, the inmate may appeal to the Central Office Review Committee ("CORC"), which makes the final administrative determination. 7 N.Y.C.R.R. § 701.7(c). In general, it is only after exhausting all three levels of the administrative review that a prisoner may seek relief pursuant to 42 U.S.C. § 1983 in federal court. Neal v. Goord, 267 F.3d 116, 122 (2d Cir.2001); Santos v. Hauck, 242 F.Supp.2d 257, 259 (W.D.N.Y. 2003).

Here, plaintiff filed a grievance concerning his medical care in August 2002. He stated that he had been trying unsuccessfully for several months "to see the diabetic Dr.... to have my insulin adjusted." Dkt. # 38 at 13. Plaintiff stated that he had written letters complaining about these matters to Drs. Laskowski and DePerio, as well as to a non-party to this action, one Ms. Frisby. Id. Plaintiff requested that he "receive proper medical care," including "rainbow coverage if needed." Id. The grievance did not mention Dr. Takos or Dr. Wright.¹

As this Court has previously noted, "[c]ourt of appeals decisions from several circuits have yielded different results regarding whether an inmate may bring an action against an individual who was not named in the inmate's prison grievance." Evan v. Manos, 336 F.Supp.2d 255, 258-59 (W.D.N.Y.2004) (citing cases). The Second Circuit appears to have adopted the approach taken by the Seventh Circuit in Strong v. David, 297 F.3d 646, 650 (7th Cir.2002), in which the court held that if prison regulations do not prescribe any particular content for inmate grievances, "a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought. As in a notice pleading system, the grievant need not lay out the facts, articulate legal theories, or demand particular relief. All the grievance need do is object intelligibly to some asserted shortcoming." See Johnson v. Testman, 380 F.3d 691, 697 (2d Cir.2004) (citing Strong with approval). The court in Johnson added that "[i]n order to exhaust, therefore, inmates must provide enough information about the conduct of which they complain to allow prison officials to take appropriate responsive measures." Id.

New York regulations provide that an "[i]n addition to the grievant's name, department identification number, housing unit, program assignment, etc., the grievance must contain a concise, specific description of the problem and the action requested and indicate what actions the grievant has taken to resolve the complaint, i.e., specific persons/areas contacted and responses received." 7 N.Y.C.R.R. § 701.7(a)(1)(i). Thus, there is no absolute requirement that an inmate identify every individual by name in order to exhaust his remedies as to those individuals, and plaintiff's failure to name Drs. Takos and Wright in this action does not automatically bar his claims against them.

"By the same token, though, the mere fact that plaintiff filed some grievance, and fully appealed all the decisions on that grievance, does not automatically mean that he can now sue anyone who was in any way connected with the events giving rise to that grievance. The Court must examine whether plaintiff's grievance sufficiently alerted prison authorities that he was alleging some wrongdoing beyond" Laskowski's and DePerio's alleged indifference to his medical needs. Turner v. Goord, 376 F.Supp.2d 321, 324-25 (W.D.N.Y.2005). See, e.g., Ortiz v. McBride, 380 F.3d 649, 653-54 (2d Cir. 2004) (finding that inmate plaintiff had exhausted his remedies as to his due process claim, but not as to his Eighth Amendment claim, since his administrative grievance did not allege Eighth Amendment violation), cert. denied, ___ U.S. ___, 125 S.Ct. 1398, 161 L.Ed.2d 190 (2005).

I find that plaintiff has not exhausted his administrative remedies as to defendants Takos and Wright. His grievance alleged only that he had complained to Laskowski, DePerio, and Frisby, and contained no suggestion that he had communicated with anyone else about these matters, or that anyone else was to blame. Nothing in his grievance would have alerted the authorities that plaintiff was making such allegations, nor would an official investigating plaintiff's grievance reasonably be expected to have explored such matters. The claims against defendants Takos and Wright must therefore be dismissed for plaintiff's failure to exhaust his administrative remedies. See Sanchez v. Fischer, No. 03 Civ. 4433, 2005 WL 1021178, at *4 (S.D.N.Y. May 2, 2005) (dismissing inmate's claim against physician where, "[d]espite his numerous [administrative] submissions and appeals, plaintiff made no allegations against [the physician] and made no claims that [the physician] failed to treat him properly"); Evan, 336 F.Supp.2d at 259 (dismissing inmate's claims against dentist for failure to exhaust because "there [wa]s simply no suggestion anywhere in plaintiff's grievance that [the dentist] ... had failed to provide him with adequate dental care"); Brewer v. Jones, No. 02 Civ. 3570, 2004 WL 235269, at *2-3 (S.D.N.Y.Feb.5, 2004) (since "[p]laintiff's grievance did not name any individual defendants other than defendant Jones, and also was silent on the nature of plaintiff's alleged encounters with the other defendants," claims against defendants other than Jones were dismissed with prejudice); see also Luckerson v. Goord, No. 00 Civ. 9508, 2002 WL 1628550, at *2, 2002 U.S. Dist. LEXIS 13297, at *5 (S.D.N.Y. July 22, 2002) (finding that litigating a federal suit based on allegations that were never made at the administrative level would make a "mockery of the exhaustion requirement").

II. Claims Against Laskowski and DePerio

As stated, the basis for plaintiff's claim against Laskowski and DePerio is that suffers from diabetes, and that defendants have refused to provide him with adequate medical treatment. In particular, plaintiff alleges that he repeatedly requested "rainbow coverage" for his diabetes, and that defendants refused his request.

To show that prison medical treatment was so inadequate as to amount to "cruel or unusual punishment" prohibited by the Eighth Amendment, plaintiff must prove that defendants' actions or omissions amounted to "deliberate indifference to a serious medical need." Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The Second Circuit has stated that a medical need is "serious" for...