Opinion
C/A 5:20-20-JMC-KDW
06-24-2021
Leury Matos Mendez, Plaintiff, v. Stevie M. Knight, Warden at FCI Estill, SC; W.E. Mackelburg, Former Warden at FCI Estill, SC; Dr. Lepiane, Physician at FCI Estill, SC; Frazier, Health Services Personnel at FCI Estill, SC At FCI Estill, SC; and Garcia, Physician Assistant at FCI Estill, Defendants.
REPORT AND RECOMMENDATION
KAYMANI D. WEST UNITED STATES MAGISTRATE JUDGE
Leury Matos Mendez, “Plaintiff, ” is a federal inmate currently housed at the United States Penitentiary in Lewisburg, Pennsylvania. Mr. Mendez brings this action alleging claims pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging Defendants violated his constitutional rights. This matter is before the court on Defendants' Motion to Dismiss, ECF No. 69, filed on November 30, 2020. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) the court advised Plaintiff on December 1, 2020, of the dismissal procedures and the possible consequences if he failed to respond adequately to Defendants' Motion. ECF No. 71. After several extensions, Plaintiff filed a Response to the Motion on June 7, 2021. ECF No. 95. This matter is now ripe for review.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Civil Rule 73.02(B)(2), D.S.C, which provides for all pretrial proceedings in certain types of matters be referred to a United States Magistrate Judge. Because Defendants' Motion is dispositive, the undersigned enters this Report (“R&R”) for the district judge's consideration.
I. Factual Background
Plaintiff initially filed this action on January 2, 2020, and later filed an Amended Complaint on July 7, 2020. ECF Nos. 1, 40. In his Amended Complaint, he makes allegations against Defendants related to his medical care while he was housed at several federal institutions, including FCI Estill. ECF No. 40. Plaintiff claims his health issues began in 2015, while confined at FCI Oakdale in Louisiana. Id. at 4. He alleges that while there he complained of lung and lower flank back pain and was placed on chronic care and began receiving treatment for torso pain from BOP Health Services personnel. Id.
Plaintiff alleges that during a chronic care visit, he had a CT scan and “the results suggested lung cancer.” Id. He further alleges that the CT scan findings indicated “there were multiple nodules scattered through the lungs bilaterally, which measured 1.1 cm.” Id. Further, he maintains the findings also indicated he had “mineral deposits/stones in the gallbladder, along with some punctuated cysts in the right kidney [and] a cyst in the upper left kidney. Id. at 4-5. Plaintiff alleges that the kidney cysts later became enlarged. Id. at 5.
Plaintiff represents that during another chronic care visit on August 23, 2019, he complained of finding blood in his vomit, experiencing severe chest pain, and having pain in his mid-quad area. Id. He further claims that he has been treated by several healthcare providers within the BOP and outside the BOP, and he has received conflicting diagnoses. Id. He maintains he suffers from consistent, chronic pain, and his internal growths show signs of cancer. Id. He claims that he has “yet to be provided with proven and effective medical treatment.” Id. He alleges that he suffers from constant chest and kidney pain and consistently finds blood in his urine and vomit. Id. He represents that “the BOP refuses to provide constitutionally-mandated treatment.” Id.
In a section entitled “injuries in which the Defendants are liable:” Plaintiff indicates that he has sustained damage to both his kidneys and his lungs due to BOP's “negligent care.” Id. at 6. Further, he represents that he continues to suffer from “severe pain, sleeplessness, continuous vomiting, painful urination, and anxiety due to negligence.” Id. He requests relief in the amount of $2,000,000 and $20,000,000 in monetary damages, as well as “immediate, emergency injunctive relief.” Id. In the “cause of action” section of his pleading, Plaintiff indicates that Defendants colluded to cause him undue pain and suffering through cruel and unusual punishment in violation of his constitutional rights and BOP's own program statements. Id. at 6-7.
II. Standard of Review
Defendants have moved to dismiss this action based on Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. When a Rule 12(b)(1) motion challenge is raised to the factual basis for subject matter jurisdiction, the burden of proving subject matter jurisdiction is on the plaintiff. Richmond, Fredericksburg & Potomac R. Co. v. U.S., 945 F.2d 765, 768 (1991). “In determining whether jurisdiction exists, the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Id. The district court should apply the standard applicable to a motion for summary judgment, under which the nonmoving party must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists. Id. The moving party should prevail only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law. Id.
To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) (quoting Bell Alt. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This Court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Indeed, “[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support [the legal conclusion].” Young v. City of Mount Rainier, 238 F.3d 567, 577 (4th Cir. 2001). If matters outside the pleadings, such as affidavits, are considered by the court in connection with a Rule 12(b)(6) motion, then the motion to dismiss converts to a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Wilson-Cook Med., Inc. v. Wilson, 942 F.2d. 247, 251 (4th Cir. 1991).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
III. Analysis
a. Failure to Exhaust
Defendants argue that Plaintiff's purported claims should be dismissed because Plaintiff has failed to exhaust his administrative remedies. See ECF No. 69 at 4-11. After describing the BOP grievance procedure, a three-step process, Defendants maintain: “[Plaintiff] filed two administrative remedies related to his medical care, neither of which w[ere] properly exhausted.” Id. at 11. Further, Defendants represents that Plaintiff, “while attempted to seek review of his claims, failed to comply with the Bureau regulations concerning the timely appeal of this administrative remedies in 28 C.F.R. § 542.15.” Id.
In Response, Plaintiff argues: “the mere availability of an ‘administrative remedy process' should not be used to render federal actors immune from civil litigation, nor should it be used as an escape hatch by the government to prevent meaningful redress by imprisoned plaintiffs.” ECF No. 95 at 8. Id. at 6. Further, he argues that “any further attempt to exhaust [the administrative remedy process] would be futile. This is due to the fact that the remedy process provided is inadequate, because it cannot resolve the constitutional law claim for monetary damages as asserted in the complaint.” Id. at 11-12.
42 U.S.C. § 1997e(a) 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.” This requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). To satisfy this requirement, a plaintiff must avail himself of all available administrative remedies. See Booth v. Churner, 532 U.S. 731 (2001). Those remedies “need not meet federal standards, nor must they be ‘plain, speedy, and effective.'” Porter, 534 U.S. at 524 (quoting Booth, 532 U.S. at 739).
The purpose of the exhaustion requirement is twofold. First, it gives an administrative agency “an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court[.]” Woodford v. Ngo, 548 U.S. 81, 89 (2006) (quoting McCarthy v. Madigan, 503 U.S. 140, 145 (1992)). Second, “[c]laims generally can be resolved much more quickly and economically in proceedings before an agency than in litigation in federal court.” Id. Any consideration of administrative remedies pursued after the commencement of the litigation would only serve to frustrate both purposes of the PLRA's exhaustion requirement. Satisfaction of the exhaustion requirement requires “using all steps that the agency holds out, and doing so properly.” Id. at 90 (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002) (emphasis in original)). Thus, “it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). Defendants have the burden of establishing that a plaintiff failed to exhaust his administrative remedies. Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 681 (4th Cir. 2005).
In support of their Motion to Dismiss, Defendants have provided the court with the BOP grievance procedure and the actions Plaintiff took to utilize the system. The BOP has a three-tiered formal administrative grievance process, although there is also an informal resolution process. See ECF No. 69 at 7 (citing 28 C.F.R. §§ 542.10 et seq). An inmate may complain about any aspect of his confinement by first seeking to informally resolve the complaint at the institution level. Id. (citing 28 C.F.R. § 542.13). If the matter cannot be resolved informally, the inmate may file a formal written complaint to the warden within 20 calendar days after the date upon which the basis for the request occurred. Id. (citing 28 C.F.R. § 542.14). The matter will be investigated, and a written response provided to the inmate. Id. If dissatisfied with the response, the inmate may appeal to the Regional Director within 20 days of the date of the Warden's response. Id. (citing 28 C.F.R. § 542.15(a)). If dissatisfied with the regional response, the inmate may appeal to the General Counsel within 30 days of the Regional Director's response. Id. Appeal to the General Counsel is the final level of agency review. Id. (citing 28 C.F.R. § 542.15(a)). Thus, a claim has not been administratively exhausted until it has been filed with the General Counsel. If during this process, the inmate does not receive a response from the Warden, Regional Director, or General Counsel within the allotted time frames including extensions, the inmate may consider such response or appeal as denied and appeal to the next level. Id.
In support of their Motion, Defendants submit the affidavit of J. Carter, a legal assistant for the South Carolina Consolidated Legal Center, who has retrieved Plaintiff's grievance history from the BOP's computer database. See ECF No. 69-1 at ¶¶ 1-2. Mr. Carter attests that Plaintiff filed grievances, or “remedy numbers” after he filed this action. Id. at ¶¶ 5-6 (emphasis added). Specifically, Plaintiff filed remedy number 1012018-F1on March 27, 2020, that he appealed on June 9, 2020. Id. at ¶ 5; p. 8. Additionally, Mr. Carter attests that Plaintiff filed Remedy ID No. 1045271-F1 on September 8, 2020, over 9 months after the filing of his Complaint. Id. at ¶ 6, p. 9. He avers that Plaintiff appealed Remedy ID No. 1045271-R1, on September 28, 2020. Id. Mr. Carter represents that both Remedies are currently pending at the Regional level. Id. at ¶¶ 5-6. Therefore, it is clear that Plaintiff failed to exhaust his administrative remedies prior to filing this action because he filed his Complaint in January of 2020, and his remedy numbers are still pending on appeal.
Plaintiff's argument that it would be futile to continue to file grievances does not excuse his failure to exhaust prior to filing this action. An inmate's perception that exhaustion would be futile does not excuse him from the exhaustion requirement. Akins v. United States, No. 3:04-23200-MBS-JRM, 2006 WL 752845, at *2 (D.S.C. Mar. 22, 2006), aff'd, 202 Fed.Appx. 592 (4th Cir. 2006); Thornton v. Snyder, 428 F.3d 690, 693 (7th Cir. 2005) (citing Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001); see also Freytes v. Laboy, 143 F.Supp.2d 187 (D.P.R. 2001). Even though Plaintiff began the grievance process, he did not complete it. The failure to exhaust administrative remedies bars him from pursuing his Bivens claims. See Akins v. United States, No. 3:04-23200-MBS-JRM, 2006 WL 752845, at *2; Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (addressing § 1983 action). Notably, Defendants raised the issue of exhaustion as a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. When a Rule 12(b)(1) motion challenge is raised to the factual basis for subject matter jurisdiction, the burden of proving subject matter jurisdiction is on the plaintiff. Richmond, Fredericksburg & Potomac R. Co., 945 F.2d at 768. In determining whether jurisdiction exists, the district court is to regard the pleadings' allegations as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment. Id. Therefore, it is proper for this court to consider the Mr. Carter's Declaration and the exhibit attached to same. Accordingly, the undersigned recommends that the Motion to Dismiss based on Plaintiff's failure to exhaust his administrative remedies be granted, and this action be dismissed. See e.g., Booth, 532 U.S. at 741 (A prisoner must exhaust “such administrative remedies as are available” before bringing suit based on prison conditions).
Based on the court's recommendation concerning the exhaustion issue, it is unnecessary to address Defendants' remaining arguments before the court.
IV. Conclusion and Recommendation
Based on the foregoing, it is recommended that Defendants' Motion to Dismiss, ECF No. 69, be granted and this action be dismissed.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”