Kasiem v. Switz

• Decision Date: 20 December 2010
• Docket Number: No. 09 Civ. 09361 (RJH).,09 Civ. 09361 (RJH).
• Parties: Allah KASIEM, Plaintiff,v.Geneve SWITZ; Pedro Diaz and The New York State Department of Correctional Services, Defendants.
• Court: U.S. District Court — Southern District of New York

756 F.Supp.2d 570

Allah KASIEM, Plaintiff,

v.Geneve SWITZ; Pedro Diaz and The New York State Department of Correctional Services, Defendants.

No. 09 Civ. 09361 (RJH).

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

Dec. 20, 2010.

Allah Kasiem, Fallsbury, NY, pro se.Jeb Harben, Office of the Attorney General, New York, NY, for Defendants.

MEMORANDUM OPINION AND ORDER

RICHARD J. HOLWELL, District Judge:

Before the Court is defendants Geneviere Switz (s/h/a Geneve Switz) (“Switz”), Pedro Diaz (“Diaz”), and New York State Department of Correctional Services' (“DOCS”) motion to dismiss [8] pro se plaintiff Allah Kasiem's (“Kasiem”) complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Kasiem brings this action under 42 U.S.C. § 1983, alleging violations of his rights while incarcerated at Sullivan Correction Facility (“Sullivan”) involving defendants' purported failure to adequately treat his claimed hearing problems and related ear pain. For the reasons that follow, the Court converts defendants' motion to one for summary judgment and, because Kasiem has failed to exhaust his administrative remedies, GRANTS the converted motion.

I. FACTUAL SETTING

For the purposes of this motion, the following facts are taken as true.

Kasiem is currently serving a fifty-year-to-life sentence at Sullivan for two counts of second degree murder. (Def.'s Mem. at 2.) On October 10, 2009, Kasiem filed this complaint, alleging six causes of action regarding the conduct of defendants Switz, a physician's assistant employed by DOCS, and Diaz, a DOCS regional health administrator, in failing to treat Kasiem's purported hearing loss and related pain. (Compl. at 3A–3C, 7; Def.'s Mem. at 1.) ¹ Kasiem claims to have suffered from complete loss of hearing in his left ear and “severe” loss of hearing in his right since at least May 21, 2009. (Compl. at 3.) He alleges that on several occasions he sought medical treatment but that the Sullivan medical staff both refused to treat his condition and refused to refer him to an audiologist. ( Id.) Kasiem did, however, see an audiologist, one John Serhan (“Serhan”), on October 2, 2009; but apparently he was again refused “any medical treatment.” ( Id.) Kasiem alleges that that refusal was based on Switz's wrongful instruction to Serhan to deny Kasiem medical treatment. ( Id.) He alleges that due to these events, he has suffered pain, he has been subjected to discipline for not obeying directions he did not hear, and he is in danger in prison. ( Id.)

Kasiem claims he “made several complaints to the Sullivan Medical Department,” and “has filed numerous grievance complaints.” ( Id.) More specifically, he states that he filed a grievance covering “[a]ll claims” contained in his complaint with the Inmate Grievance Resolution Committee (“IGRC”) and its “Central Office Chief Medical Officer.” ( Id. at 4.) After that filing resulted in “[d]eliberate indifference,” Kasiem appealed the grievance to the Central Office Review Committee (“CORC”), and also filed a complaint with the Chief Medical Officer of DOCS. ( Id.) Kasiem attaches to his complaint a CORC receipt indicating that his grievance, “SUL–18695–09 entitled PA Lied About Medical Disability” was received by CORC on July 16, 2009. (Compl. Ex. D.)

Grievance number SUL–18695–09, filed with IGRC on June 11, 2009, does not, however, concern any actions taken by Switz or Diaz relating to Kasiem's hearing. Instead, that grievance was filed against Switz and two other prison personnel, “Sr. Counselor Karson,” and “Sgt. Rivera.” (Harben Decl. Ex. E at 2.) It alleged, in essence, that Rivera retaliated against Kasiem for sexual harassment complaints Kasiem made against him by directing Switz to place Kasiem in “medical keeplock” ² after Kasiem accidentally fell and hurt his knee; that Switz proceeded to place Kasiem in “medical keeplock” without further evaluation; and that Karson then discussed Kasiem's medical condition publically. ( Id. at 2–3.) The grievance includes nothing whatsoever about Kasiem's hearing loss, his related pain or danger, or Switz's wrongful and retaliatory refusals to treat those conditions. On June 24, 2010, the IGRC found that grievance SUL–19695–09 was “without merit.” ³ ( Id. at 5.) Kasiem appealed that determination to the superintendent and then to CORC. ⁴ On July 29, 2009, CORC affirmed the denials of Kasiem's grievance, finding, like the IGRC, the grievance “without merit.” ( Id. at 8.)

Between February 13, 2008, and February 8, 2010, Kasiem filed twenty-nine grievances with the IGRC. ( See Harben Decl. Ex. F at 1–2.) The Court has reviewed the log listing all of Kasiem's grievances during this period, but can find only four that possibly relate to the matters alleged in this case: (1) grievance number 18777, titled “Wants Appointment with Audiologist;” (2) grievance number 18920, titled “P.A. Demonstrating Professional Misconduct;” (3) grievance number 18925, titled “Unlawful Disability Discrimination;” and (4) grievance number 19054, titled “Fraudulent Misrepresentation by Audiologist.” ( Id.) Of those four, only for “P.A. Demonstrating Professional Misconduct” did Kasiem receive a determination from CORC on appeal. ( Id.) That determination was returned by CORC on January 20, 2010.

II. DISCUSSION

A. Converting the Motion

On a motion to dismiss, the Court accepts the complaint's allegations as true and draws all reasonable inferences in the plaintiff's favor. In re DDAVP Direct Purchaser Antitrust Litigation, 585 F.3d 677, 692 (2d Cir.2009). Where a motion is premised on the plaintiff's failure to exhaust his administrative remedies, the Court considers whether nonexhaustion is clear from the face of the complaint. See Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (exhaustion is an affirmative defense, so inmates need not specially plead or demonstrate it in their complaints). If nonexhaustion is clear, the motion to dismiss should be granted. Shaw v. City of New York, No. 08 Civ. 3997(SHS)(JCF), 2009 WL 1110789, at *3 (S.D.N.Y. Apr. 21, 2009) (quoting McCoy v. Goord, 255 F.Supp.2d 233, 251 (S.D.N.Y.2003)). If it is not, the court may convert the defendant's motion to one for summary judgment “limited to the narrow issue of exhaustion and the relatively straightforward questions about the plaintiff's efforts to exhaust, whether remedies were available, or whether exhaustion might be, in very limited circumstances, excused.” McCoy, 255 F.Supp.2d at 251; see Fed.R.Civ.P. 12(b).

If the court chooses to convert the motion, it must “afford all parties the opportunity to present supporting material.” Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir.2000) (internal quotation marks omitted). The court need not give formal notice of its intention if “the parties were ... apprised of the likelihood of conversion by less formal or direct means and, in fact, had a sufficient opportunity to present the materials relevant to a summary judgment motion.” 5C Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1366 (3d ed. 2004); see In re G. & A. Books, Inc., 770 F.2d 288, 295 (2d Cir.1985) (“The essential inquiry is whether the [nonmovant] should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings.”).

Here, the defendants claim that Kasiem did not exhaust his remedies before filing this lawsuit. ( See Def.'s Mem. at 15–19.) Kasiem contends that he filed a grievance covering all claims alleged in this action and that, upon denial, he appealed the grievance to CORC. (Compl. at 4.) But the grievance covered by the CORC receipt attached to the complaint does not relate to the facts or claims alleged in this action. In an abundance of caution, however, the Court will assume that nonexhaustion is not plain from the face of the complaint and treat defendants' motion as one for summary judgment limited to the issue of exhaustion. Formal notice to the parties is unnecessary here, since defendants attached as exhibits to their motion the records they have of Kasiem's grievances and appeals. (Harben Decl. Exs. E, F.) All parties were on notice of the possibility of conversion; the defendants notified Kasiem that the Court might choose to treat the motion to dismiss as one for summary judgment, and that to oppose it, Kasiem would need to submit evidence, such as affidavits. (Notice to Pro Se Litigant, addressed to Allah Kasiem, dated Mar. 18, 2010, ECF document no. [11].)

B. Exhaustion1. The Exhaustion Requirement

The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e, requires that prisoners exhaust all available administrative remedies before pursuing a lawsuit in federal court. See 42 U.S.C. § 1997e(a) (“No 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.”); Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (exhaustion is required for “all inmate suits about prison life”); Booth v. Churner, 532 U.S. 731, 734, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001) (exhaustion required before filing a Section 1983 claim for monetary damages even though monetary damages are unavailable as an administrative remedy). To properly exhaust a claim, a prisoner must comply with state grievance procedures. Jones, 549 U.S. at 218, 127 S.Ct. 910. Merely “[a]lert[ing] the prison officials as to the nature of the wrong for which redress is sought does not constitute proper exhaustion.” Macias v. Zenk, 495 F.3d 37, 44 (2d Cir.2007) (internal quotation marks and citation omitted). An “untimely or procedurally defective” administrative grievance also does not constitute proper exhaustion. Woodford v. Ngo, ...