WILSON v. DR CLINTON et al

Filing 7

REPORT AND RECOMMENDED DECISION re 1 Complaint filed by KARLA K WILSON. Objections to R&R due by 1/24/2018 By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
KARLA K. WILSON,
Plaintiff
v.
DR. CLINTON, et.al,
Defendants

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2:17-cv-00409-GZS

RECOMMENDED DECISION AFTER SCREENING COMPLAINT
PURSUANT TO 28 U.S.C. §§ 1915(e), 1915A
In this action, Plaintiff Karla K. Wilson, an inmate in the custody of the Maine
Department of Corrections, alleges that Defendants Dr. Clinton and Wendi Reibe have
deprived Plaintiff of medical care in violation of the Eighth Amendment of the United
States Constitution. (Complaint, ECF No. 1.)
Plaintiff filed an application to proceed in forma pauperis (ECF No. 4), which
application the Court granted. (ECF No. 5.)

In accordance with the in forma pauperis

statute, a preliminary review of Plaintiff’s complaint is appropriate.

28 U.S.C. §

1915(e)(2). Additionally, Plaintiff’s complaint is subject to screening “before docketing,
if feasible or … as soon as practicable after docketing,” because she is “a prisoner seek[ing]
redress from a governmental entity or officer or employee of a governmental entity.” 28
U.S.C. § 1915A(a).
Following a review of Plaintiff’s complaint, I recommend the Court dismiss
Plaintiff’s claim of negligence, and permit Plaintiff to proceed on her constitutional claim.

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STANDARD OF REVIEW
The federal in forma pauperis statute, 28 U.S.C. § 1915, is designed to ensure
meaningful access to the federal courts for those persons unable to pay the costs of bringing
an action. When a party is proceeding in forma pauperis, however, “the court shall dismiss
the case at any time if the court determines,” inter alia, that the action is “frivolous or
malicious” or “fails to state a claim on which relief may be granted.” 28 U.S.C. §
1915(e)(2)(B). “Dismissals [under § 1915] are often made sua sponte prior to the issuance
of process, so as to spare prospective defendants the inconvenience and expense of
answering such complaints.” Neitzke v. Williams, 490 U.S. 319, 324 (1989).
In addition to the review contemplated by § 1915, Plaintiff’s complaint is subject to
screening under the Prison Litigation Reform Act because Plaintiff currently is incarcerated
and seeks redress from governmental entities and officers. See 28 U.S.C. § 1915A(a), (c).
The § 1915A screening requires courts to “identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or
fails to state a claim.” 28 U.S.C. § 1915A(b).
When considering whether a complaint states a claim for which relief may be
granted, courts must assume the truth of all well-plead facts and give the plaintiff the
benefit of all reasonable inferences therefrom. Ocasio-Hernandez v. Fortuno-Burset, 640
F.3d 1, 12 (1st Cir. 2011). A complaint fails to state a claim upon which relief can be
granted if it does not plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

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Although a pro se plaintiff’s complaint is subject to “less stringent standards than
formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972), this is
“not to say that pro se plaintiffs are not required to plead basic facts sufficient to state a
claim,” Ferranti v. Moran, 618 F.2d 888, 890 (1st Cir. 1980). To allege a civil action in
federal court, it is not enough for a plaintiff merely to allege that a defendant acted
unlawfully; a plaintiff must affirmatively allege facts that identify the manner by which the
defendant subjected the plaintiff to a harm for which the law affords a remedy. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
FACTUAL BACKGROUND
Plaintiff alleges that Defendants Dr. Clinton and Wendy Reibe have subjected
Plaintiff to cruel and unusual punishment and “neglect.” (Complaint at 3.) According to
Plaintiff, she has Meniere’s disease, a condition that affects her inner ear and causes vertigo
and hearing loss.

Plaintiff asserts that certain health care providers at the Maine

Correctional Center have supported Plaintiff’s request for an outside consultation with an
ear, nose and throat specialist, but Dr. Clinton has denied the referral and instead adjusted
Plaintiff’s medication.1 (Id. at 4 – 5.) Plaintiff alleges she is losing peripheral vision in
her right eye and has experienced hearing loss. (Id. at 4.) Plaintiff also has a dental issue
(need for a filling in one tooth and for other teeth to be “fixed”) and has spoken to Dr.
Clinton and Wendy Reibe about both issues. (Id. at 5, 7.) Plaintiff maintains that her
medications are not addressing her conditions. (Id. at 4.)

Plaintiff elsewhere alleged that “due to a lack of vision in [her] left eye,” she “was sent out to an outside
doctor.” (Complaint at 7, 8.)

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In the form complaint filed by Plaintiff, Plaintiff references a grievance process at
the Maine Correctional Center that covers some or all of her claims. (Id. at 6.) Plaintiff
further wrote that the “grievance process was done [and] I didn’t appeal because I spoke to
Wendy Reibe about my dental situation,” and “I did not appeal Dr. Clinton because I did
get slight advocation [sic] by the nurses but I should appeal [b]ut I get frustrating nonanswers.” (Id. at 8.)
DISCUSSION
A.

Plaintiff’s Constitutional Claim
Plaintiff arguably has stated a claim under 42 U.S.C. § 1983 for “deliberate

indifference” to a serious medical need. Federal law, however, requires a prisoner to
exhaust the available administrative remedies before initiating a lawsuit based on 42 U.S.C.
§ 1983. Specifically, “[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); see also Jones v. Bock, 549 U.S. 199, 211 (2007)
(“There is no question that exhaustion is mandatory under the PLRA [Prison Litigation
Reform Act] and that unexhausted claims cannot be brought in court.”)

“‘Prison

conditions’ under [the PLRA] include individual instances of medical mis-or nontreatment.” Acosta v. United States Marshals Service, 445 F.2d 509, 512 (1st Cir. 2006).
The Supreme Court has held that § 1997e(a) requires “proper exhaustion” of a
prisoner’s administrative remedies. Woodford v. Ngo, 548 U.S. 81, 93 (2006). “Proper
exhaustion demands compliance with an agency’s deadlines and other critical procedural
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rules because no adjudicative system can function effectively without imposing some
orderly structure on the course of its proceedings.”

Id. at 90 – 91. “Compliance with

prison grievance procedures … is all that is required … to ‘properly exhaust.’” Jones, 549
U.S. at 218. “[I]t is the prison’s requirements, and not the PLRA, that define the boundaries
of proper exhaustion.” Id. Ordinarily, failure to exhaust is treated as an affirmative defense
and dismissal at the pleading stage is not warranted. However, “[a] court may sua sponte
dismiss a complaint when the alleged facts in the complaint, taken as true, prove that the
inmate failed to exhaust his administrative remedies.” Custis v. Davis, 851 F.3d 358, 361
(4th Cir. 2017) (vacating sua sponte dismissal where the prisoner plaintiff alleged that he
attempted to exhaust, and appealed the dismissal of his grievance to the highest level,
which allegations permitted an inference that he exhaust administrative remedies); Torns
v. Mississippi Dep’t of Corr., 301 F. App’x 386, 388 – 89 (5th Cir. 2008) (“One way in
which a complaint may show the inmate is not entitled to relief is if it alleges facts that
clearly foreclose exhaustion. In such a case, the district court may sua sponte dismiss the
complaint for failure to state a claim.”) (vacating sua sponte dismissal where the allegations
did not mention the administrative process and simply stated administrators did not
respond); Cullinan v. Mental Health Mgmt. Corr. Servs., Inc., No. 11-cv-10593, 2012 WL
2178927, at *3 (D. Mass. June 11, 2012).
The Tenth Circuit and the Fourth Circuit have observed that when a prisoner’s
complaint clearly reflects that the prisoner did not exhaust administrative remedies, the
district court should inquire further of the prisoner before screening the complaint based
on non-exhaustion under 28 U.S.C. §§ 1915 and 1915A. Aquilar-Avellaveda v. Terrell,
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478 F.3d 1223, 1225 (10th Cir. 2007) (suggesting that a district court may request
additional information from prisoner where the face of the complaint clearly reflects nonexhaustion, noting that “facts ordinarily pled in allegations concerning prison conditions
frequently will not give a definitive answer as to whether a prisoner has completed his
internal grievance process or whether he was thwarted in his attempts to do so”); Anderson
v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 682 (4th Cir. 2005) (“[W]e conclude that a
district court may raise the issue of exhaustion of remedies on its own motion. Except in
the rare case where failure to exhaust is apparent from the face of the complaint, however,
a district court cannot dismiss the complaint without first giving the inmate an opportunity
to address the issue.”).2
Here, although Plaintiff has asserted facts which suggest she might not have
exhausted all of the available administrative remedies, because she also asserted that she
has received “non-answers” to grievances, the Plaintiff’s failure to exhaust the available
administrative remedies is not clearly apparent on Plaintiff’s complaint. In Ross v. Blake,
136 S. Ct. 1850, 1856 – 57 (2016), the Supreme Court, while confirming that the
exhaustion of available administrative remedies is mandatory, noted there are some
“circumstances in which an administrative remedy, although officially on the books, is not
capable of use to obtain relief.” Id. at 1859. While Plaintiff has alleged facts that generate
an issue regarding exhaustion, she has also alleged facts that raise a question regarding the

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The Fourth Circuit has clarified that requiring further information of the prisoner is only appropriate where
the complaint clearly reflects the failure to exhaust. Custis v. Davis, 851 F.3d 358, 363 (4th Cir. 2017).
The Ninth Circuit appears to hold that even where the failure to exhaust is clear on the face of the complaint,
the issue should be addressed in the context of a motion to dismiss. Albino v. Baca, 747 F.3d 1162, 1166
(9th Cir. 2014).
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availability of the administrative proceedings. Given that administrative exhaustion is an
affirmative defense and thus a plaintiff is not required to plead exhaustion, Jones v. Bock,
549 U.S. 199, 216 (2007), dismissal under 28 U.S.C. §§ 1915 and 1915A is not appropriate.
See also Ramos v. Patnaude, 640 F.3d 485, 488 (1st Cir. 2011) (“The Supreme Court made
it plain … that exhaustion under § 1997e(a) is not a jurisdictional condition, and has held
it to be an affirmative defense.” (citing Jones, 549 U.S. at 212)).
B.

Plaintiff’s Claim of “Neglect”
Plaintiff appears to assert a claim of “neglect,” which claim the Court could construe

as a state law claim of professional negligence/medical malpractice. If Plaintiff intended
to assert such a claim, however, Plaintiff cannot proceed on the claim in this Court on the
current record. Under Maine law, to proceed on a medical negligence case, Plaintiff must
first complete the prelitigation screening process mandated by the Maine Health Security
Act. 24 M.R.S. §§ 2853 et seq. See Henderson v. Laser Spine Inst., 815 F. Supp. 2d 353,
381 (D. Me. 2011). Plaintiff has alleged no facts to suggest, and the record does not
otherwise reflect, that Plaintiff has satisfied the prerequisites to a state law medical
malpractice action.
CONCLUSION
Based on the foregoing analysis, pursuant to 28 U.S.C. § 1915(e)(2) and 29 U.S.C.
§ 1915A(a), I recommend the Court dismiss Plaintiff’s claim of negligence, and permit
Plaintiff to proceed on her constitutional claim.

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NOTICE
A party may file objections to those specified portions of a magistrate
judge's report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district
court is sought, together with a supporting memorandum, within fourteen
(14) days of being served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court's order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 10th day of January, 2018.

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