Veloz v. New York

• Decision Date: 30 September 2004
• Docket Number: No. 02 Civ. 7070(SHS).,02 Civ. 7070(SHS).
• Citation: 339 F.Supp.2d 505
• Parties: Francisco VELOZ, Plaintiff, v. State of NEW YORK, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

339 F.Supp.2d 505

Francisco VELOZ, Plaintiff, v. State of NEW YORK, et al., Defendants.

No. 02 Civ. 7070(SHS).

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

September 30, 2004.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Francisco Veloz, Wyoming Correctional Facility, Attica, NY, Pro se.

Benjamin J. Lee, Assistant Attorney General, Eliot Spitzer, Jerry Slater, Attorney General of New York, New York City, for Defendants.

OPINION & ORDER

STEIN, District Judge.

Francisco Veloz brings this action pro se pursuant to 42 U.S.C. § 1983 alleging that defendants violated his constitutional right under the Eighth Amendment to the U.S. Constitution to be free from cruel and unusual punishment. His allegations arise out of the treatment he received for a spinal condition while incarcerated at Green Haven Correctional Facility. Specifically, Veloz alleges defendants failed to provide adequate medical care for his condition for more than eight years. He also alleges that the operation that was eventually performed to improve his condition actually worsened his condition and caused him to lose feeling from the waist down and to have severe bladder problems. Plaintiff alleges he suffered a physical disability as a result of this operation, and that defendants failed to adequately accommodate his condition by placing him in an unsanitary cell that leaked black water rather than place him in the Unit for the Physically Disabled ("UPD"). Plaintiff further contends that the reason behind defendants' decision to refuse him placement in the UPD was his disability, in violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12132, and his race — he claims he is "Spanish" — in violation of the Fourteenth Amendment's Equal Protection Clause. Veloz contends that these factors — his disability and race — also influenced defendants' decision to refuse to place him in Green Haven's Honor Block, apparently a preferred housing assignment.¹ Veloz further alleges that defendants denied him medical attention for sixty-nine days for an injured right wrist, and never provided him medical care for an injury to his left shoulder. Finally he alleges defendants moved him from his cell and placed him in the prison gym for extended periods of time without providing him a private place to change his adult diaper while female correctional officers patrolled, in violation of the Eighth Amendment's cruel and unusual punishment clause.

Defendants the State of New York, Department of Correctional Services of the State of New York ("DOCS"), Dr. John Galeno — the doctor who performed surgery on Veloz — and seven individuals associated with DOCS — Christopher Artuz, Charles Greiner, Lawrence Zwillinger, Carl Joseph Koenigsmann, Sabrina Kaplan, Corrections Sergeant Goodman and Corrections Officer C. Butenhoff — now move for summary judgment pursuant to Federal Rule of Civil Procedure 56 on the grounds that: (1) plaintiff has failed to exhaust his administrative remedies for at least six of the eight claims as required by the Prison Litigation Reform Act of 1995, as amended, 42 U.S.C. § 1997e(a); (2) plaintiff has failed to exhaust his ADA claims with the United States Department of Justice; (3) plaintiff has failed to allege facts to support his contention that the delay in treatment for his spine, left shoulder, and right wrist resulted in any adverse medical effects, or that Dr. Galeno performed the spine operation with deliberate indifference that caused detrimental effect; (4) defendants Zwillinger, Koenigsmann and Kaplan were not personally involved in the alleged constitutional deprivations; (5) all the individual defendants are entitled to qualified immunity; and (6) this Court lacks jurisdiction over the subject matter of this action under the Eleventh Amendment.² For the reasons set forth, the motion is granted.

I. The Standard for Summary Judgment

Summary judgment will be granted only when the moving party demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir.1995) (quoting Fed.R.Civ.P. 56(c)). The moving party must demonstrate "the absence of a genuine issue of material fact." Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (internal quotations and citation omitted). To survive a summary judgment motion, the non-moving party must "make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Id.; see Fed.R.Civ.P. 56(e). In determining whether summary judgment is appropriate, the district court "`must view the evidence in light most favorable to the non-moving party and draw all reasonable inferences in its favor.'" American Cas. Co. of Reading, Pa. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir.1994) (quoting Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568, 572 (2d Cir.1993)). A grant of summary judgment is appropriate when no rational jury could find in favor of the non-moving party because there is no genuine issue of material fact based on the evidence in the record or the substantive law. Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1224 (2d Cir.1994).

Furthermore, where, as here, a party is proceeding pro se, a Court must read the pro se litigant's supporting papers liberally and interpret them "`to raise the strongest arguments that they suggest.'" Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994)). The application of this liberal standard does not, however, "relieve plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment." Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir.2003).

II. Exhaustion of Administrative Remedies

A. Exhaustion within DOCS' grievance system

The Prison Litigation Reform Act 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." 42 U.S.C. § 1997e(a). In Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 992, 152 L.Ed.2d 12 (2002), the United States Supreme Court held that the "PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or some other wrong." In its statutory analysis of the PLRA, the Supreme Court held in Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001), that exhaustion of administrative remedies is required regardless of the relief offered. Id. at 740-41, 121 S.Ct. at 1824-25. Porter mandates that every claim asserted by a prisoner must be grieved administratively prior to seeking judicial relief. Fields v. Brown, No. 02 Civ. 1178, 2002 WL 31202763, at *3 (S.D.N.Y. Oct.1, 2002).

The failure to exhaust available administrative remedies is an affirmative defense that may be waived if not raised. Johnson v. Testman, 380 F.3d 691, 696 (2d Cir.2004). It is also subject to estoppel. Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir.2004). When, as here, defendants raise this issue of exhaustion as a defense and plaintiff provides a plausible argument to counter their position, the Second Circuit has suggested that district courts follow a three-step inquiry. Hemphill v. New York, 380 F.3d 680, 686 (2d Cir.2004). First, courts must determine "whether administrative remedies were in fact `available' to the prisoner." Id. (citing Abney v. McGinnis, 380 F.3d 663 (2d Cir.2004)). Administrative remedies may be considered unavailable in cases where an inmate receives a favorable ruling through the administrative process and the prison system fails to implement the suggested remedy. Abney, 380 F.3d at 668-69. Since the administrative process does not provide a mechanism for appealing "implementation failures," and therefore no administrative remedy is available, prisoners in such a case have fully exhausted their administrative remedies. Id. at 669. Second, courts should inquire whether defendants waived the failure to exhaust this defense by not raising or preserving it, Hemphill, 380 F.3d at 686 (citing Johnson, 380 F.3d at 696), or whether defendants are estopped from raising this defense based on their own behavior, such as inhibiting an inmate from grieving. Id. (citing Ziemba, 366 F.3d at 163). Finally, courts should consider any "`special circumstances'" that may justify a prisoner's failure to exhaust remedies. Id. (quoting Giano v. Goord, 380 F.3d 670 (2d Cir.2004)).

New York State's Inmate Grievance Procedure ("IGP") has established a three-step inmate grievance process available to prisoners to exhaust their administrative remedies. See N.Y. Correct. Law § 139; N.Y. Comp.Codes R. & Regs. tit. 7, § 701. Generally, the regulations require that an inmate first file a complaint with the inmate grievance resolution committee ("IGRC") within fourteen days of the alleged event. N.Y. Comp.Codes R. & Regs. tit. 7, § 701.7(a)(1). The IGRC must then investigate and resolve the complaint informally within seven days. Id. at § 701.7(a)(3). If there is no informal resolution, a hearing is held, and the inmate may appeal the result to the Superintendent of the facility within four days of receiving it. Id. at §§ 701.7(a)(4), (b). Finally, the inmate must appeal the Superintendent's decision to the Central Office Review Committee ("CORC") within four days of its receipt. Id. at § 701.7(c). The CORC, in turn, must render a decision within twenty days. Id. Complete exhaustion of the above administrative remedies through the highest level for each claim is required. Fields, 2002 WL 31202763, at *2-3 (section 1983...