Evan v. Manos

• Decision Date: 23 September 2004
• Docket Number: No. 01-CV-6607L.,01-CV-6607L.
• Citation: 336 F.Supp.2d 255
• Parties: Andre EVANS, Plaintiff, v. G. MANOS, Sergeant at Southport Correctional Facility, B. Harvey, Doctor J. Alves, Defendants.
• Court: U.S. District Court — Western District of New York

336 F.Supp.2d 255

Andre EVANS, Plaintiff, v. G. MANOS, Sergeant at Southport Correctional Facility, B. Harvey, Doctor J. Alves, Defendants.

No. 01-CV-6607L.

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

September 23, 2004.

Andre Evans, Pine City, NY, pro se.

Gary M. Levine, Rochester, NY, for plaintiff/Defendant.

Marian Whitney Payson, Assistant Attorney General, Rochester, NY, for Defendant.

DECISION AND ORDER

LARIMER, District Judge.

Plaintiff, Andre Evans, 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, alleges that his constitutional rights were violated in a number of respects while he was confined at Southport Correctional Facility ("Southport") in 2001. Plaintiff has sued three defendants: Sergeant G. Manos, a correction officer at Southport; and Doctors John Alves and Burt Harvey, who at all relevant times were a physician and dentist, respectively, at Southport. Both sides have moved for summary judgment.

BACKGROUND

The complaint alleges that Manos assaulted plaintiff on March 30, 2001. As a result of the assault, plaintiff sustained several injuries, including injuries to his teeth, jaw, and torso. Plaintiff states that he asked Manos to let him see a doctor and dentist, but Manos refused. Plaintiff submitted a number of written requests for medical and dental care, but they were denied.

Eighteen days after the alleged assault, plaintiff was seen by "the facility dentist" (presumably Dr. Harvey), Complaint § 6, who told plaintiff that he needed immediate surgery to remove one of his back teeth. Ten days later, the tooth was extracted. It is not entirely clear how plaintiff believes that Harvey violated plaintiff's rights, but it appears that he is alleging that the tooth could have been saved had plaintiff received treatment sooner.

Plaintiff also alleges that it "took [him] 30 days to see" Dr. Alves, and that when he did see Alves, Alves "terminated the visit without checking [plaintiff] because [plaintiff] questioned why it took so long for him to see [plaintiff]." Id. Plaintiff states that Alves then rescheduled his visit for two weeks later, and that following that visit, Alves sent him to an outside hospital for x-rays.

Plaintiff's x-ray report, dated June 7, 2001, states that a "rib fracture is not identified," and that the radiologist "d[id]n't see any evidence for fracture." Alves Decl. (Docket #) Ex. A at 27. The report also stated that the x-rays showed "mild levoscoliosis [curved spine] in the lumbar area," and that "[t]here may be minimal degenerative changes with osteophytes [bone spurs] arising from the anterior surfaces of the vertebral bodies at T12 and L1." Id.

Plaintiff filed a grievance with the Inmate Grievance Resolution Committee ("IGRC") on March 31, 2001. He stated in the grievance that Sgt. Manos had assaulted him, and that afterwards, plaintiff "asked several times to see the institutional nurse or doctor. I was denied medical treatment." James Meck Aff. (Docket # 33) Ex. A. He did not mention Drs. Alves or Harvey by name, however.

In a memorandum dated April 5, 2001, Inmate Grievance Program Supervisor James Meck informed plaintiff that his grievance had been received and forwarded to Southport's superintendent for review. While the grievance was pending, plaintiff sent a letter to the IGRC, dated April 19, 2001, complaining that he "ha[d] been trying to see the facility doctor" since March 30. Id. He stated that he had repeatedly put in for sick call, but that all that had happened was that he had been prescribed ibuprofen. He added, "How can the doctor prescribe anything for a patient, without examining the patient? ... Doctor, J. Alves, violated my 8th amendment constitutional rights, that guarantee against cruel and unusual punishment." Id.

On May 2, 2001, the superintendent issued a decision denying plaintiff's grievance. The decision, bearing the caption "Assaulted by Sgt. — Denied Medical Care," stated that plaintiff "st[ood] by his allegation of having been assaulted by a sgt.," and that "the sgt. categorically denies the allegation." The superintendent concluded, "I find nothing to substantiate the grievant's allegations." Id.

DISCUSSION

I. Exhaustion of Administrative Remedies

Defendants contend that the complaint should be dismissed, at least as to Alves and Harvey,¹ for failure to satisfy the exhaustion requirement of the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). That statute provides 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. See 7 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's decision is appealed, the inmate may appeal to the superintendent of the facility, and if the superintendent's decision is appealed, the Central Office Review Committee ("CORC") makes the final administrative determination. See 7 N.Y.C.R.R. § 701.7. 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).

Based on the evidence before me, I find that plaintiff has failed to exhaust his administrative remedies as to defendant Harvey, and that Harvey is entitled to summary judgment. There is no mention of Harvey in plaintiff's grievance, nor any suggestion that plaintiff had received inadequate care from any facility dentist. The grievance alleges that plaintiff was prevented from receiving any medical treatment, but not that Harvey himself refused to see plaintiff, or that he saw plaintiff but failed to treat him properly. In addition, although in a letter to the IGRC dated April 3, 2001, plaintiff stated that his injuries included "three loose teeth," Meck Aff. Ex. A, plaintiff never indicated that he wanted to see a dentist specifically.

Court 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. See Curry v. Scott, 249 F.3d 493, 505 (6th Cir.2001) (holding that § 1997e(a) requires an inmate to name in his grievance each individual whom the inmate intends to sue); Strong v. David, 297 F.3d 646, 649-50 (7th Cir.2002) (holding that courts must look to the prison grievance system itself to determine what an administrative grievance must contain, and that where the administrative rules are silent on the issue, a grievance is sufficient if it alerts the prison to the nature of the wrong for which the inmate seeks redress); Brown v. Sikes, 212 F.3d 1205, 1207-08 (11th Cir.2000) (holding that that § 1997e(a) requires an inmate to provide as much relevant information as is reasonably possible in the administrative grievance process). The Second Circuit has not yet decided the issue, but under any of the standards that other courts have adopted, plaintiff did not exhaust his administrative remedies as to Harvey. There is simply no suggestion anywhere in plaintiff's grievance that Dr. Harvey, or any dentist at Southport, had failed to provide him with adequate dental care.

Given the length of time that has elapsed since the incidents giving rise to this lawsuit, plaintiff is now barred from filing a grievance against Harvey. See 7 N.Y.C.R.R. § 701.7(a)(1) (inmate must submit grievance to the grievance clerk within fourteen calendar days of the alleged occurrence of the event upon which the grievance is based). The Court of Appeals for the Second Circuit has held that "dismissal with prejudice, when remedies are no longer available, is required `in the absence of any justification for not pursuing [such] remedies.'" Giano v. Goord, 380 F.3d 670, 675, 2004 U.S.App. LEXIS 17235, at *11 (2d Cir. Aug. 18, 2004). Although the court has not yet set forth "any broad statement of what constitutes justification," id. 380 F.3d at 678, *21 (finding that inmate's failure to exhaust administrative remedies was justified by his reasonable belief that certain DOCS regulations barred him from grieving matters relating to disciplinary proceedings), there is simply no basis here to conclude that plaintiff was "justified," for purposes of the PLRA exhaustion requirement, in omitting to name or refer to Dr. Harvey in his grievance.

I reach a different conclusion as to Dr. Alves, however. Although Alves was not named in the original grievance dated March 31, 2001, plaintiff's April 19 letter to the IGRC plainly stated that "Doctor, J. Alves, violated [plaintiff's] 8th amendment constitutional rights...." Plaintiff also explained the basis for that assertion: that Alves had simply prescribed ibuprofen without having examined plaintiff. Although plaintiff did not expressly allege that Alves had refused to see him, what is clear is that plaintiff brought his claims against Alves to the attention of the IGRC, while his grievance was still pending. The superintendent's report denying plaintiff's grievance made no mention of Alves (though it did recognize that plaintiff had alleged that he was "[d]enied [m]edical [c]are"), but certainly whether an inmate has exhausted his administrative remedies cannot depend on what the prison authorities did or did not do in response to his grievance; it is what the inmate does that counts. The IGRC could have treated plaintiff's April...