Buffman v. United States of America et al

Filing 51

OPINION and ORDER Adopting the Magistrate Judge's 38 Report and Recommendation, Granting Defendants' 28 Motion to Dismiss Plaintiff's Complaint, Denying Plaintiff's 29 Motion to Replace Defendant Gidel, and Denying Plaintiff's 30 Motion in Opposition - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Emmett Buffman,
Case No. 13-cv-14024
Hon. Judith E. Levy
Mag. Judge Mona K. Majzoub

Plaintiff,
v.
United States of America, et al.,
Defendants.
_______________________________/

OPINION AND ORDER ADOPTING THE MAGISTRATE
JUDGE'S REPORT AND RECOMMENDATION, GRANTING
DEFENDANTS’ [28] MOTION TO DISMISS PLAINTIFF’S
COMPLAINT, DENYING PLAINTIFF’S [29] MOTION TO
REPLACE DEFENDANT GIDEL, AND DENYING PLAINTIFF’S
[30] MOTION IN OPPOSITION

This matter is before the Court on Magistrate Judge Mona K.
Majzoub’s Report and Recommendation, issued on July 10, 2014 (Dkt.
38), in which the Magistrate Judge recommends the Court grant the
Motion to Dismiss (Dkt. 28) filed by defendants Terris, Zestos, Pomaloy,
Gidel, and Malatinsky, deny plaintiff Emmett Buffman’s Motion in
Opposition to Defendants’ Motion to Dismiss (Dkt. 30), and deny as
moot Buffman’s Motion to Replace Defendant Stephen Gidel with
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Bureau of Prisons Director Charles A. Samuels (Dkt. 29). The basis for
the recommendation is that Buffman failed to exhaust administrative
remedies as required by the Prison Litigation Reform Act (PLRA), 42
U.S.C. § 1997e(a). Plaintiff timely filed objections to the report and
defendants replied to those objections. (Dkt. 42, 44.)
For the reasons set forth below, the Court will adopt the Report
and Recommendation and enter it as the findings and conclusions of
this Court. Defendants' motion to dismiss will accordingly be granted,
Buffman’s motion in opposition will be denied, and Buffman’s motion to
replace defendant Gidel will be denied as moot.
I.

Factual and procedural background
At all times relevant to the allegations in his complaint, Buffman

was incarcerated at the Federal Correctional Institution in Milan,
Michigan (FCI Milan).

The individual defendants are the following

Bureau of Prisons (BOP) employees working at FCI Milan at the time
relevant to Buffman’s allegations: Warden J.A. Terris; Health Services
Administrator James Zestos; Medical Licensed Practitioners Restituto
Pomaloy and Stephen Gidel; and Clinical Director William Malatinsky.

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Buffman's claims against defendants relate to the allegedly
improper medical treatment he received in February 2013.

First,

Buffman alleges that on February 13, 2013, Pomaloy failed to treat two
boils on Buffman’s body, sending Buffman instead to the optometrist.
(Dkt. 1, Compl. 15.) Buffman alleges Pomaloy acted on the basis of
personal animus towards him. (Id. at 18.) Second, Buffman alleges
that on February 20, 2013, Gidel attempted to treat one boil but
neglected to treat the other. (Id. at 16.) Third, Buffman alleges that on
February 21, 2013, Gidel again failed to adequately treat his boils. (Id.)
Fourth, Buffman alleges he was treated negligently by correctional
officers on the way to and upon arrival at the hospital. (Id. at 19.)
Buffman alleges the purported failure to diagnose and treat his boils
resulted in his hospitalization for a staph infection.

(Id. at 19-20.)

Buffman seeks $1,000,000 in damages from all defendants. (Id. at 21.)
On March 25, 2013, Buffman filed an administrative claim with
the Federal Bureau of Prisons under the Federal Tort Claims Act,
seeking $300,000 in damages for personal injury. (Dkt. 1, Ex. 1 to Pl.’s
Compl.) That claim was denied on August 22, 2013. (Id.) Buffman
filed this suit on September 19, 2013, against defendants Terris, Zestos,
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Pomaloy, Gidel, and Malatinksy under Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971), and against the United States under the
Federal Torts Claims Act (FTCA). (Dkt. 1, Compl.) Buffman brings
claims for “Negligence, Abuse of Process, Acts Errors, Omissions,
Deliberate Indifference, and Condoning or Acquiescing to other federal
employees (or each other) from doing the above cited Tort’s.” (Id. at 4.)
Buffman alleges Pomaloy’s and Gidel’s actions constituted
deliberate indifference to a serious medical need. (Id. at 6.) Buffman
does not allege any personal participation by defendants Terris, Zestos,
and Malatinsky in the actions giving rise to his claim for medical
negligence.
The individual defendants all moved to dismiss on the grounds
that the plaintiff failed to exhaust his administrative remedies by
properly pursuing the grievance process at FCI Milan. (Dkt. 28, Defs.’
Br. 6-10.) Buffman admits that he did not exhaust the administrative
remedies available at FCI Milan. (Dkt. 1, Compl. 4.)
Defendants Terris, Zestos, and Malatinsky raise additional
grounds for dismissal of Buffman’s claims against them: Buffman does
not allege their personal participation in a constitutional violation, and
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his claims are therefore barred by qualified immunity. (Dkt. 28, Defs.’
Br. 10-14.)
The Magistrate Judge recommends granting defendants' motion
based on Buffman’s undisputed failure to exhaust administrative
remedies, as required by the PLRA.

She further recommends

Buffman’s motion in opposition and motion to replace defendant Gidel
be

denied

as

moot.

Buffman

objected

to

the

report

and

recommendation, contending the Magistrate Judge did not construe the
complaint in the light most favorable to Buffman, and again alleging
that seeking administrative remedies would result in retaliation
against him.
II.

Standard of Review
District courts review de novo those portions of a report and

recommendation to which a specific objection has been made. 28 U.S.C.
§ 636(b)(1)(C). “De novo review in these circumstances entails at least a
review of the evidence that faced the magistrate judge; the Court may
not act solely on the basis of a report and recommendation.” Spooner v.
Jackson, 321 F. Supp. 2d 867, 868-69 (E.D. Mich. 2004).

5

Objections to the report must not be overly general, such as
objections

that

dispute

the

correctness

of

the

report

and

recommendation but fail to specify findings believed to be in error.
Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006); see also Howard
v. Sec’y of HHS, 932 F.2d 505, 509 (6th Cir. 1991). “The objections must
be clear enough to enable the district court to discern those issues that
are dispositive and contentious.” Miller v. Currie, 50 F.3d 373, 380 (6th
Cir. 1995).
When deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6),
the Court must “construe the complaint in the light most favorable to
the plaintiff and accept all allegations as true.” Keys v. Humana, Inc.,
684 F.3d 605, 608 (6th Cir.2012). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). A plausible claim need not contain “detailed
factual allegations,” but it must contain more than “labels and
conclusions” or “a formulaic recitation of the elements of a cause of
action[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
III. Analysis
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A.

Exhaustion of Administrative Remedies

The PLRA bars a civil rights action challenging prison conditions
until the prisoner exhausts available administrative remedies:
No action shall be brought with respect to prison conditions
under section 1979 of the Revised Statutes of the United
States (42 U.S.C. 1983), 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). Defendants bear the burden of establishing a
plaintiff’s failure to exhaust. Surles v. Andison, 678 F.3d 452, 455 (6th
Cir. 2012).
The duty to exhaust administrative remedies under the PLRA is
mandatory and without exception. Jones v. Bock, 549 U.S. 199, 211
(2007) (“There is no question that exhaustion is mandatory under the
PLRA and that unexhausted claims cannot be brought in court.”); Booth
v. Churner, 532 U.S. 731, 741 n.6 (2001) (“[W]e will not read futility or
other exceptions into statutory exhaustion requirements where
Congress has provided otherwise.”). The Sixth Circuit has elaborated
that “exhaustion is required even if the prisoner subjectively believes
the remedy is not available; even when the state cannot grant the
particular relief requested; and even where [the prisoners] believe the
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procedure to be ineffectual or futile.” Napier v. Laurel Cnty., 636 F.3d
218, 222 (6th Cir. 2011) (citations and internal quotation marks
omitted).
Prison officials can engage in conduct that effectively renders
administrative remedies unavailable to a prisoner.

See Napier, 636

F.3d at 223-24. However, “[t]he Sixth Circuit requires some affirmative
efforts to comply with the administrative procedures before analyzing
whether the facility rendered these remedies unavailable.” Id. at 223.
Buffman initially maintained it would be “totally pointless” to
seek administrative remedies from the individuals and institution who
allegedly harmed him. (Dkt. 1, Compl. 4-5.) Buffman later justified his
failure to exhaust based on fear of retaliation from prison officials.
(Dkt. 30, Pl.’s Mot. in Opposition 4-7, 16.) The Magistrate Judge found
that Buffman had “failed to plead any specific facts, incidents, or
reasons for his fear of retaliation.” (Dkt. 38, Report & Recommendation
5.) Now, Buffman alleges a “very real” threat of retaliation, citing (1)
the alleged transfer of another inmate who had assisted others with
grievance submissions, and (2) a unit manager named “Miss Moody”
forcing Buffman to work during his post-operative rest period, allegedly
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because Buffman had filed an administrative grievance against her.
(Dkt. 42, Objection 2.)
It is well established in this Circuit that nonspecific allegations of
fear and subjective feelings of futility will not excuse a failure to
exhaust administrative remedies. See Boyd v. Corr. Corp. of Am., 380
F.3d 989, 998 (6th Cir. 2004). Buffman’s claim of futility thus cannot
excuse his failure to exhaust. As for his fear of retaliation, Buffman’s
allegation regarding the transfer of another inmate is too vague – for
example, the unit manager was purportedly “instrumental” in having
the inmate transferred – to support Buffman’s objection.
allegation does not pertain to Buffman himself.

And the

The allegation

regarding Buffman’s being forced to work during recovery ties that
action to an administrative complaint against the unit manager herself.
(Dkt. 2, Objection 2.)

It does not suggest a fear of retaliation for

grievances pursued against other officials, such as the defendants here.
Buffman’s allegations of fear of retaliation suffer from a greater
problem: he filed administrative grievances after the alleged incident of
retaliation by Moody.

Buffman was released from the hospital and

returned to FCI Milan on February 26, 2013. (Dkt. 1, Compl. 19-20.)
9

According to Buffman, health services staff at FCI Milan were to
perform follow-up care for 30 days following the surgery. (Id. at 21; see
also Dkt. 42, Objection 2.) During this post-operative period, Buffman
alleges Moody forced him to get out of bed and go to work. (Dkt. 42,
Objection 2.)

But the record shows that Buffman filed an

administrative grievance against a unit manager, presumably Moody,
on April 23, 2013, a full two months after his return from surgery, and a
month after the 30-day post-operative period. (Dkt. 28-2, Ex. A to Defs.’
Mot. 9.) Buffman filed another grievance against a unit manager two
weeks after that, on May 8, 2013.

(Id.)

Buffman filed additional

grievances on May 5, May 27, June 2, and June 11, 2014, all alleging
staff misconduct.1 (Dkt. 44-1, Ex. D to Defs.’ Resp. to Pl.’s Objections.)
It thus appears that Buffman has not been deterred from filing
numerous administrative grievances after the incident he now claims
deterred him from exhausting his administrative remedies.

In fact, the June 2, 2014 grievance appears to concern Buffman’s removal from a
GED program by his unit manager. Buffman alleges this grievance was the basis
for the retaliatory act – his being forced out of bed while recovering from his surgery
– that should excuse his failure to exhaust administrative remedies. Yet the June
2, 2014 grievance was filed well over a year after Buffman’s surgery, and thus well
after the alleged retaliation took place.
1

10

Buffman has thus not only failed to show he made “some
affirmative efforts to comply with administrative procedures” regarding
his present claims, he has shown that the administrative procedures,
were, in fact, available to him at the time, based on his continuing to
file grievances after the allegedly retaliatory conduct. His allegations of
fear of retaliation therefore do not excuse his failure to exhaust
administrative remedies, and his claims against the individual
defendants must be dismissed without prejudice. See Boyd, 380 F.3d at
994 (holding dismissal under § 1997e should be without prejudice).
B.

Qualified immunity

The Magistrate Judge declined to decide the issue of qualified
immunity, having recommended dismissal of Buffman’s claims against
the individual defendants for failure to exhaust administrative
remedies. The Court nonetheless finds that Buffman’s claims against
defendants Terris, Zestos, and Malatinsky are barred by qualified
immunity.
Under the doctrine of qualified immunity, “government officials
performing discretionary functions generally are shielded from liability
for civil damages insofar as their conduct does not violate clearly
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established statutory or constitutional rights of which a reasonable
person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982).
A plaintiff bears the burden of showing a defendant is not entitled
to qualified immunity. Stoudemire v. Mich. Dep't of Corr., 705 F.3d
560, 568 (6th Cir. 2013). To do so, a plaintiff must (1) allege facts
showing violation of a statutory or constitutional right, and (2) show
that the right was clearly established at the time of the violation. Id. at
568.

But the allegations “must establish with particularity that a

defendant himself has violated some clearly established statutory or
constitutional right in order to strip that person of the protection of
qualified immunity.” Harris v. City of Cleveland, 7 F. App’x 452, 457
(6th Cir. 2001).

“A plaintiff may not, therefore, rely solely on the

doctrine of respondeat superior in order to defeat a supervisor’s
assertion of qualified immunity.” Id.; see also Ashcroft v. Iqbal, 556
U.S. 662, 677 (2009) (“Absent vicarious liability, each Government
official, his or her title notwithstanding, is only liable for his or her own
misconduct.”).

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Buffman has failed to allege facts showing that Terris, Zestos, or
Malatinsky was personally involved in his medical treatment. Buffman
makes no allegation against Terris in his complaint.

His only

allegations regarding Zestos and Malatinsky are that Gidel and
Pomaloy were “under the direction of Dr. Malatinsky and Administrator
Zesto [sic] at all times.” (Dkt. 1, Compl. 7.) Moreover, Terris and Zestos
have attested in affidavits that they were not personally involved in
Buffman’s medical treatment. (Dkt. 28-3, Ex. B to Defs.’ Mot. ¶¶ 2-3;
Dkt. 28-4, Ex. C to Defs.’ Mot. ¶ 2.) Terris, Zestos, and Malatinsky are
thus entitled to qualified immunity and Buffman’s claims against them
must be dismissed.
IV.

Conclusion
Accordingly,

the

Magistrate

Judge's

Report

and

Recommendation (Dkt. 38) is ADOPTED;
The individual defendants' Motion to Dismiss (Dkt. 28) is
GRANTED;
Plaintiff’s Motion in Opposition (Dkt. 30) is DENIED;
Plaintiff’s claims against defendants Terris, Zestos, Pomaloy,
Gidel, and Malatinsky are DISMISSED without prejudice; and
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Plaintiff’s Motion to Replace Defendant Gidel (Dkt. 29) is
DENIED as moot.
SO ORDERED.
Dated: January 6, 2015
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on January 6, 2015.

s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

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